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r<ibS TRIG TED 


OFFICE OF STRATEGIC SERVICES 


Research and ‘-analysis Branch 


declassified 

SE£ EXCHANGE & GIFT 

0€CLASS!F*CAT»O ,: r:j jr m 




R & A No. 31S9 


AN LEGISLATION ON THE PUNISHMENT OF FASCIST CRIMES 


Description 


This report is a compendium of Italian 
laws governing defascistization. It in¬ 
cludes a description of the various types 
of crimes committed by Fascists, their 
punishment, the courts, the High Commis¬ 
sioner for Sanctions against Fascism, and 
the applicable rules of criminal procedure. 
The report also contains comments on 
legal questions arising under these laws, 
including issues of constitutionality, 
retroactivity, and conflicts of jurisdic¬ 
tion. 


Washington 
20 J\lly 1945 


This document contains information 
affecting the national defense of the 
United States within the meaning of 
the Espionage Act, 50 U.S.C. 31 and 
32, as amended. Its transmission or 
the revelation of its contents in any 
manner to an unauthorized person is 
prohibited by law. 







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Table of Contents 


Table of Contents 

ABBREVIATIONS 

INTRODUCTION 

I. CATEGORIES OF FASCIST CRIMINALS (OR TYPES OF CRIMES) AND THEIR 
PUNISHMENT. 


Page 

ii 

ix 

x 

1 


A. Crimes or Quasi-Offenses Committed Prior to the Armistice. 1 

1. Fascist hierarchs and high-ranking Fascist government 

officials. 1 

2. Fascist organizers guilty of violence. 2 

3. Fascists who materially contributed to the suppression 
of democratic institutions and to the maintenance of 

the Fascist regime. 2 

4. Fascists who (prior to the armistice) committed crimes 

other than those mentioned under 1-3 above* 3 

5. Persons who for Fascist motives or by taking advantage 
of the situation created by Fascism committed acts 
contrary to principles of rectitude or political probity. 4 

6. Persons who conducted themselves in a manner inspired 

by Fascist malpractice to such an extent as to be 
regarded as dangerous to the exercise of democratic 
liberties. 6 


B. Crimes Committed Subsequent to the Armistice. 


7 


1. Neo-Fascists who collaborated with the Germans. 


7 


C. Crimes of Quasi-Offenses which may be Committed in the 

Future. 10 


1. Persons who reorganize or promote the reorganization 

of the Fascist Party. 10 

2. Persons who participate in the reorganization or 
promotion of the reorganization of the Fascist Party. 10 

3. Persons who by threat or violence prevent the 

exercise'of’democratic liberties. 10 

4. Persons who organize armod bands for the purpose of 

reestablishing the Fascist Party or preventing by 
threats or violence the exercise of democratic 
liberties. 11 

5. Leaders of armed bands who attempt to reorganize 
the Fascist Party or by threats or violence prevent 
the exercise of democratic liberties in such a manner 

as to provoke civil war. 11 

6. Persons who by any means of propaganda incite others 

to the perpetration of any crime mentioned under 1-5, 
above. 12 

7. Former Fascists who conduct themselves in a manner 

inspired by Fascist malpractice in such a way as to 
endanger the exercise of democratic liberties. 12 

11 . EXTENUATING CIRCUMS TANCES. 15 

A. Opposition to Fascism and Participation in the Fight 

against the Germans. 15 

B. Extenuating Circumstances as provided by the 1889 Penal 

Code. 15 


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C. Cofnments. 15 

III. PROVISIONS AFFECTING DEFENSES. 17 

A. Revocation of Pardons. • 17 

B. Inapplicability of the Criminal Sta-tute of Limitations. 17 

C. Annulment o' raudulent or Frivolous Judgments against 

Fascists. 18 

D. Provisions Limiting the Effect of Ch. Ill: A to C,- above. 19 

* 

E. Abrogation of Laws and Judgments Passed under the Neo- 

Fascist Regime. • 19 

F. Abolition of Prerogatives. • 20 

IV. THE DEATH‘PENALTY AND TRIAL BY JURY. • 23 

A. The Death Penalty. - 23 

1. Under the 1889 Penal Code. • 23 

2; Under the 1931 Penal Code, 23 

3. Under the'Current Laws. 23 

a. In General.* 23 

b. The Death Penalty under the Defascistization Laws. 24 

i. Classes of crimes for which the death penalty 

is not imposed. * 24 

ii. Classes of crimes for which the death penalty 

is manc.:t>ory or discretionary# 24 

B. Trial by Jury in Criminal Cases. . 24 

1. No constitutional provisions for trial by jury. 24 

2. Under the pre-Fascist legislation. 25 

3. Under the Fascist laws and the Code of Penal Procedure 

of 1931. : 25 

4. Under the current defascistization laws, 26 

V. THE COURTS AND COMMISSION ENTRUSTED WITH THE PUNISHMENT OF 

FASCIST CRIMINALS. 27 

A. The High Court of Justice. 27 

• • 

1. Jurisdiction. ’*’ 27 

a. Crimes described in Ch. I: A, 1, above. 27 

b. Exceptional circumstances. 28 

i. Provisions of the law. 28 

c. Authority to' disregard formality of pleading and 

render judgments falling under the ordinary 
jurisdiction of other tribunals. 28 

i. Provisions of the law. 28 

d‘. Conflict of jurisdiction. 29 

i. Provisions of the law. 29 

e. Crimes described in Ch. I: A, '5 and 6; C, 7, above. 30 

2. Organization. ' 31 

e. Composition of th'e High Court of Justice and appoint- 

* ment of its members. ’ 31 

b. Appointment of substitutes. 31 

c. Separation of the High Court of Justice into two 

sections. 31 

3. Procedure, v 32 

a. The preliminary stages of the trial. 32 

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i. Summary pre-trial proceedings, 33 

ii. Time limit within which the accused must appear 

before the court, * 33 

iii. Quashing of proceedings, 33 

b. Finality of decisions rendered by the High Court of 

Justice. 34 

c. Tort action against the accused. 34 

d. Provisions concerning the clerk of the High Court of 

Justice. 34 

Ordinary Criminal Courts. 35 

1. The (ordinary) Courts of Assi z es. 35 

a. Jurisdiction, 35 

i. In General. 35 

ii. Specific Instances. 36 

(1) Crimes described in Ch.I: A, 2, above, 36 

(2) Crimes described in Ch.I: A, 3, above. 36 

(3) Crimes described in Ch.I: A, 4, above, 36 

(4) Quasi-offenses described in Ch.I: A, 5 and 6; 

C, 7, above, 37 

(5) Crimes described in Ch.I: B, above, 38 

(o) Crimes described in Ch.I.: C» 1> above. 39 

(7) Crimes described in Ch.I: C, 3, above, 39 

(8) Crimes described in Ch.I: C, 4, above. 39 

(9) Crimes described in Ch.I: C, 5, above. 39 

b. Organization, 40 

i. Composition of the ordinary Courts of Assizes. 40 

ii. Appointment of the regular judges. 40 

iii. Appointment, qualifications, and oath of the 

popular judges. 40 

(1) Appointment. 40 

( 2 ) Qualifications, 41 

( 3 ) Oath, 41 

c. Procedure, ' 41 

i. Rules expediting proceedings, 41 

(l) Special rules for crimes described in Ch.I: 

A, 2-6; B; C, 7, above. 42 

ii.* -revisions for review. 42 

(1) No appeal against judgments of (ordinary) 

Courts of Assizes. 42 

( 2 ) Review by the Supreme Court of Cassation. 43 

(a) General rule. # 43 

(b) Revi ew of judgments imposed for crimes 
listed in Ch.I: A, 2-6; B; C, above, 43 

iii. The Attorney General. 43 

iv. Applicability of general rules- governing tjie 

procedure before the Court of Assizes, 43 

2. The Tribunal*. 44 

a. Jurisdiction, . * 44 

i. In General. 44 

ii. Specific instances. 44 

( 1 ) •Crimes described in Ch.I: A, 4, above. 44 

( 2 ) Crimes* describedi&n Ch.I: B, above. 44 

( 3 ) Quasi-erffenses described in Ch.I: A, 5-6; 

C, 7, 'above. 45 

( 4 ) Crimes described in Ch.I: C, Z> above. 46 

(5) Crimes described in Ch.I: C, 6, above. 46 

b. Organization. 46 

c. Procedure. ♦ 46 

i. Provisions for review, 46 

ii. Appellate jurisdiction of the Tribunals. 46 

iii. The Attorney General, • 46 

y iv RESTRICTED 







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3 . ' The Praetors. 47 

a. Jurisdiction* 47 

i. In General, 47 

ii. Specific Instances. 47 

(1) Crimes described in Ch.I: A, 4, above, 47 

(2) Quasi-offenses described in Ch.I: A, 5-6; 

C, 7, above, 47 

b. Organization, • 47 

c. Procedure. 47 

i. Provisions for review, 47 

ii. The Attorney General. 48 

4. Courts with exclusively appellate jurisdiction, 48 

a. The Courts of Appeals, 48 

b. The Supreme Court of Cassation. 48 

C. The Extraordinary Courts of Assi z es, . 48 

1. Jurisdiction, 

.1. Jurisdiction, 48 

a. Limited jurisdiction. 48 

i. Territorial and other limitations. 48 

ii. Limitations of time. 48 

b. Crimes which fall within the jurisdiction of the 

Extraordinary Courts of Assizes. . 49 

i. Crimes described in Ch.I: £, above. 49 

ii. 'Crimes described in Ch.I: A, 2-4, above. 52 

iii. Quasi-offenses described in Ch.I: A, 5-6; 

C, 7, above, . '53 

2 Organization. 53 

a. Establishment of Extraordinary Courts of Assizes 

and sections of Extraordinary Courts of Assizes. 53 

b. Composition of the Extraordinary Courts of Assizes, 53 

c. Location of Courts. . 53 

d. Appointment of the President and a substitute. 54 

e. Appointment of popular judges. 54 

f. The Attorney General’s office. 55 

3. Procedure. 55 

a. ^ules expediting procedure. 55 

b. Provisions for review. 56 

. c. Tort action against the accused. 56 

d. Applicability of general' rules governing the 

procedure of the Courts of Assizes. 56 

D. The Supreme Court of Cassation. . 56 

1. Ordinary penal sections of the Supreme Court of 

Cassation. 56 

a. Jurisdiction, 56 

i.. Ordinary appellate jurisdiction. 56 

(1) In General. , 53 

( 2 ) Ricorso to the Supreme' Court of Cassation. 57 

Ha) Provisions establishing the grounds for 

ricorso . ‘ 57 

ii) From judgments of ordinary criminal 

courts. 57 

’ (ii) From judgments of extraordinary 

criminal courts, 58 

(b) Effect of the ricorso . 59 

( 3 ) Revisions by the Supreme Court of Cassation. 60 

(a) Provisions establishing the grounds for 

review. 60 

(i) Mistake. 6C 

(ii) Fraud. 60 

(b) Effect of the revisione, 61 


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ii. Original jurisdiction and extraordinary 

appellate jurisdiction, 61 

(1) Original jurisdiction to vacate fraudu¬ 
lent judgments mentioned in Ch. Ill: 

C, 1, above. • 61 

(2) Extraordinary appellate jurisdiction. 61 

b. • Organization*. . - 1 ' . ’ ' ..e " t 62 

c. Procedure. 62 

2. Special Provisional Penal Sections of the Supreme Court 

of Cassation, 62 

a. Jurisdiction, 62 

b. Organization. 62 

c. Procedure, 62 

i. Ricorso by the person adjuc^ged guilty, 62 

ii. Ricorso' by the State. • 62 

iii. Review of sentences imposing the death penalty, 63 

E. Military Tribunals. • 63 

1 . Jurisdiction. 63 

^a. Crimes described in Ch.I: B, above. 63 

b. Crimes described in Ch.I: A, 4, above, 65 

2 . Organization. 65 

3. Procedure. * 65 


F. Provincial Commissions (First Class). 


65 


1. Jurisdiction. 

2 . Organization. 

a. Composition of the Provincial Commissions. 

b. Appointment of the presiding judge. 

c. Appointment of popular judges. 

3. Procedure. 

a. Venue. 

b. The initial stage of the proceedings, 

c. Arrest of the accused and time limit within which 
Provincial Commissions must render their decision. 

d. Protection of the accused. 

e. Appeal from the decisions of the' Provincial Com¬ 
missions. 

f. Time limit for the enforcement of sanctions 
described in Ch.I: A, 5,b, above. 

g. Provisions concerning the clerk of the Provincial 
Commissions. 


65 

67 

67 

67 

67 

67 

67 

68 

68 

68 

68 

69 

69 


G. Central Commission. 


69 


1. Jurisdiction. 

2 . Organization. 

3. Procedure. 


69 

69 

69 


H. Provincial Commissions (Second Class). 


70 


1. Jurisdiction. 

2. Organization. 

3. Procedure. 

a. Initial stages of the proceedings. 

b. Immediate arrest of the accused without service of 
process, 

c. Service of process on the accused with order to 
appear before the Commission, 

d. Enforcement of the order to appear before the 
Provincial Commission. 


70 

70 

71 
71 

71 

71 

72 


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e. Judgment by default. 72 

f. Provisions for the protection of the accused. 72. 

- g. Trial and judgment, . • • 72 

h. Provisions for review, 73 

i. Provisions governing the establishment of 

• t: - concentra.tion camps. 73 

*■ Time limit for enforcement of sanctions, ’ 73 

I. Commission of Appeals. 73 

• 1 . Jurisdiction. 73 

2 . Organization. 73 

a. Composition of the Commission of Appeals. 73 

’ b. Location. 74 

3. Procedure. 74 

VI. OFFICE OF THE HIGH COMMISSIONER. 75 

A. In General, 75 

1 . Functions of the Office of the High Commissioner. 75 

2. Composition of the Office of the High Commissioner. 75 

m 

B. The High Commissioner for Sanctions against Fascism. 75 

1. Appointment. 75 

2 . Functions, 75 

a. Supervision of the sanctions against Fascism. 76 

b. The High Commissioner, sole attorney general in 

proceedings before the High Court of Justice, 76 

i. General rule. 76 

ii. Exceptional circumstances. 76 

c. Instances in which the High Commissioner may 
exercise the functions of attorney general con¬ 
currently with or to the exclusion of regular 
attorneys general before courts other than the 

High Court of Justice. 77 

i. Initiation of istruzione . 77 

ii. High Commissioner^ authority to institute 

proceedings to review judgments. ' 78 

iii. High Co missloner’s authority to reopen the 
istruzione 'when'proceedings were quashed for 
lack of sufficient evidence. 78 

d. Authority to propose revocation of pardons. 79 

C. Assistant High Commissioners, 79 

1 . Appointment, 79 

2. Functions of the Assistant High Commissioners. 79 

.a. Tn general. 79 

b. As substitutes for the High Commissioner. 79 

D. Vice Assistant High Commissioners. 79 

1. Appointment. 79 

2 . Functions. 80 

E. Office of the Secretary. 80 

F. Magistrates and other functionaries of the Office of the 

High Commissioner. 80 

G. Police Force at the disposal of the High Commissioner’s 

Office. ^ 80 

H. Other Employees of the High Commissioner’s Office. 81 

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Page 

VII. GENERAL ARD TRANSITORY’PROVISIONS. 82 

A. Applicable to crimes or quasi-offenses described in 

Ch.I: A, 1-6; B; and C, 7-8, above. 82 

1* Provisions concerning proceedings for the punishment 
of Fascist crimes initiated prior to- 27 duly 19A4. 

2. Provisions concerning the punishment of defascistiza- 

tion officials guilty of certain crimes. 82 

B. Applicable to crimes described in Ch.I: C, 1-6, above. 82 

1. Provisions fo. the punishment of persons who aid and 
abet those guilty of the crimes mentioned in Ch.I: 

C, 1-6, above. 82 

2 . Provisions concerning relatives of persons guilty of 

the crimes described in Ch.I: C, 1-6, above. 83 

BIBLIOGRAPHY AMD SOURCE MATERIAL. 84 

I 


\ 


viii 


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ABBREVIATIONS 

Codice Penale 

Codice Penale Militare di 
Guerra 

Codice Penale Militare di 
Pace 

Codice di Procedura Penale 


Decreto Legislative Luogo- 
tenenziale 

Decreto del Presidente del 
Consiglio dei Ministri 

Gazzetta Ufficiale 

Legge 

Ordinamento Giudiziario 
Militare 

Regio Decreto 

Regio Decreto-Iegge 

Relazione del Guardasigilli 
sul progetto definitivo • 


Penal Code 

Penal Military War Code 


Penal Military Peace 
Code 

Code of Criminal Pro¬ 
cedure 

Legislative Decree of 
the Lieutenant General 
of the Realm 

Decree of the President of 
Council of Ministers 

Official Gazette in 
which all the Italian 
laws are published 

Lav; 

Regulation of the mili¬ 
tary judicial adminis¬ 
tration 

Royal Decree 

Royal Decree Law 

Report of the Minister 
Keeper of the Seals on 
the final draft 


* 




IX 


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INTRODUCTION 

The purpose of the present report is twofold: l) to make a com¬ 
pendium of current Italian legislation on the punishment of Fascists, and 
2) to explain this legislation and discuss the issues which arise there¬ 
under,^ Procedural rules have been treated only if they constitute a 
departure from the ordinary rules governing criminal procedure or when 
necessary to explain the changes in procedural law or the functions of the 
courts. The report also includes comments on the problems of retroactivity 
of the laws, conflicts of jurisdiction, questions of constitutionality, and 
right to trial by jury. Furthermore, an effort has been made to explain 
the principal differences between the Italian and Anglo-American systems of 
criminal procedure when such an explanation might lead to a clearer under¬ 
standing of the practical operation of the Italian laws. The outline form 
of presentation was chosen because it has three advantages: l) the subject 
matter is more readily understandable, 2) reference to specific laws or 
clauses of these laws is facilitated, and 3 ) additions to the text neces¬ 
sitated by new legislation repealing or amending existing laws treated in 
the present report is. easier. 

The operation of the intrinsically simple (although often poorly 
drafted and ambiguous) Italian legislation on the punishment of Fascist 
criminals is complex. There are fifteen types of crimes or quasi-offenses 
which have been grouped in this report into three categories, l) Pre¬ 
armistice, 2) Post-armistice, and 3) Those which may be committed in the 
future. Twelve different courts or commissions with original or appellate 
jurisdiction are entrusted with the enforcement of the laws. The juris¬ 
diction of these courts is a difficult study in itself. In some parts of 
Italy the courts exercise concurrent and/or exclusive jurisdiction, while 
in other parts other courts have the same jurisdiction. To add to the con¬ 
fusion, the original laws on punishment of Fascist crimes have been frequent¬ 
ly amended and re-amended and both the Fascist and pre-Fascist legal codes 

1. For an analysis of the results of the Italian defascistization campaign 
see OSS R & A Report No. 2688, Treatment of Former Fascists by the 
Italian Government. 


x 


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are still in force. Finally, the political issue of defascistization com¬ 
plicates the problem since the major political parties in Italy, while 
agreeing in principle on the necessity for defascistization, can agree 
neither on the extent to which they wish to extirpate all traces of the 

regime or upon the degree of harshness which they wish to employ toward 

1 

individual Fascists, 

Legislation for the punishment of Fascist criminals was not passed 

for some time after the abolition of the Fascist regime and until after a 
number of other laws on defascistization had been adopted because the 
government then in power apparently did not consider it politically ex- 
pedient to deal too severely with former Fascists. The first decree on 
the punishment of Fascists was not adopted until 26 May 1944, and no marked 
success in bringing Fascist criminals to justice was achieved until the 
Extraordinary Courts of Assizes were established in Northern Italy on 26 
April 1945? partially, at least, because the ordinary tribunals were too 
burdened with other business and the single special court established to 
try Fascist criminals was unable to meet the demands made upon it. Recent¬ 
ly this situation has been corrected by the establishment of provincial 
commissions throughout Italy and by the organization of the Extraordinary 

Courts of Assizes in Northern Italy where the political pressure for swift 
and thorough defascistization has been greater than in the South, These 
courts have been permitted to disregard many of the formalities of procedure 
(which were found to delay defascistization in Southern Italy) and deliver 
summary judgments, 

i - 

* 


1, OSS R & A Report No, 2688, cited, 

2. R.D.L. 26.5.44. #134. 

xi RESTRICTED 


















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, 

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I. CATEGORIES OF FASCIST CRIMINALS (OR TYPES OF CRPDS AND THEIR 
PUNISHMENT. 


Typ, s of Fascist criminals have been grouped according to the 
period in which their offenses were committed. The crimes or quasi-of¬ 
fenses described in this report have been placed in the following categories: 
l) those committed prior to the armistice (i.e., 8 September 1943), 2) those 
committed following the armistice, and 3) those which may be committed in 
the‘future. This somewhat burdensome classification is justified in the 
light- of difficulties otherwise encountered in the application of the 
principle of non-retroactivity of the law. (Rule against ex cost facto laws). 

A. -Crimes or Quasi-Offenses committed- prior to the armistice . 

1. Fascist hierarchs and high-ranking Fascist government officials . 

- : ■ a‘. Grime or class of criminals : "The members of the Fascist 

Government and the Fascist hierarchy guilty of having 
l) annulled the constitutional guarantees, 2) destroyed 
popular freedoms, 3) created the Fascist regime, 4) comr- 
promised and betrayed the fate of thfe Nation, and 5) led 
up to the present catastrophe...." ^rt. 2. D.i.L. 27.7.44 . 

# 152 * 


’ b. Punishment : "....shall be punished with life imprisonment 

and in instances of greater responsibility with the death 
penalty." Art. 2. D.L.L. 27.7.44. #159 , 

c. Tribunals having .jurisdiction : Cf. Ch. V: A, la, below p. 27. 

d. Comment : These were high-ranking Fascists on the policy¬ 
making level. Note, however, that Fascist hierarchs and 
top-ranking Fascist government officials who collaborated 
with the Germans (i.e. neo-Fascist leaders) are guilty of a 

. separate offense and are to be punished in accordance with 

the provisions set forth under B, below (p .35 ) • Consequent¬ 
ly, members of both the Fascist pre-armistice and neo-Fas¬ 
cist governments as well as pre-armistice and neo-Fascist 
hierarchs are guilty of two different crimes and are punish¬ 
able accordingly* 


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Fascist organizers guilty of violence , 

a. Crime or class of criminals : M l) Organizers of Fascist 
squads, which committed acts of violence or destruction* 
and 2) persons who promoted or led the insurrection of 
28 October 1922*•••" Art, 3» D«L»L« 27.7.4 4. #159* 

b. Punishment : "....shall be punished in accordance with 
Article 120 of the 1889 Penal Code." Art, 3» D«L.L. 

27.7.44. #159 . 

c. Tribunals hav i ng .jurisdiction : Cf. l) Ch. V: A, lb—d, 
P-:28-29; 2) Ch. V: B, la, ii, (l), p. 36; 3) Ch; V: C, lb, 
ii* P* 52. 

d. Comment ;’ Article 120 of the 1889 Penal Code provides that; 
"Whoever commits an act inciting the inhabitants of the 
kingdom to talse up arms against the Powers of the State, 
shall be punished by six to'fifteen years imprisonment. 

If the insurrection took place, whoeVer promoted or directed 
it shall be punished by imprisonment for a period of not 
less than eighteen years. Whoever only took part* in it 
shall be punished by three to fifteen years imprisonment." 
Therefore, since the persons described under a, above (p. 2) 
were leaders or organizers, they are punishable with a 
minimum sentence of eighteen years imprisonment. According 
to the law, unless there are "aggravating circumstances," 
the maximum penalty is twenty-four years imprisonment. 

(Cf. Giulio Battaglini; Diritto penale (1940), p. 405) 

In no event, however, would this category of Fascist 
criminals be punished with the death penalty or life 
imprisonment. 

Fascists who materially contributed to the suppression of demo ¬ 

cratic institutions and to the maintenance of the Fascist regime . 

a. Crime or class of criminals ; "l) Persons who promoted or 
led the coup d T etat of 13 January 1925 (by-which the 

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Mussolini government seized dictatorial power) and 
2) those who later materially contributed to the main¬ 
tenance of the Fascist regime,, *" Art, 3« D«L»L« 2 7.7.44. 
#159 , 

b. Punishment : "....shall be punished in accordance with 
Article US'* of the 1889 Penal Code. Art. 3» D.L.L . 

27.7.44* #159 , 

c. Tribunals having .jurisdiction ; Cf. l) Ch, V: A, lb-d, 

p-28^.29 ; 2) Ch, V: B, la, ii, (2), p, 36 ; 3) Ch. V: C, lb, 
ii> p. 52. 

d. Comment s Article 118 of the 1889 Penal Code provides that: 
"Whoever commits an act designed to l) obstruct the King 
or the Regent, wholly or in part, even temporarily, in the 
exercise of his sovereignty, 2) prevent the Senate or the 
Chamber of Deputies from exercising their duties, 3) change 
by violent means the constitution of the State, or the form 
of Government, or the line of succession to the throne - 
shall be punished with imprisonment for not less than 

o twelve years," Consequently, in the absence of aggravat¬ 
ing circumstances, persons falling within this group of 
Fascist criminals are punishable with twelve to twenty- 
four years imprisonment* 

Fascists who (prior to the armistice) committed crimes other 

than those mentioned under 1-3 above. 

a. Crime or class of criminals : "Whoever has committed other 

crimes (other than those mentioned under 1-3 above (pp. 1-3) 
l) with Fascist motives, or 2) by taking advantage of the 
political situation created by Fascism.,.." Art. 3 . D.L.L . 
27.7*44. #159 . . * ' ' 

b. Punishment : "*...shall,be punished in accordance with the 

laws in foirce at the time the crime was committed." 

Art. 3. D.L.L, 27.7.44. #159 . 


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c. Tribunals having .jurisdiction : Cf. l) Ch. V: A, lb-d, 

p. 28-^29 5 2) Ch. V: B, la, ii, (3), p .36 ; 3) Ch. V: B, 2 a, 
ii, (l), p, 44 ; 4) Ch. V: B, 3a, ii, (l), P- 47 i 3) Ch. V: 
C, lb, ii, p. 52 ; 6 ) Ch. V: E, lb, p. 65 . 

d. Comments t l) According to the above provisions if tne 
crime was committed prior to 1931, it i s , punishable in 

• accordance with the provisions of the 1889 Penal Code and 
if committed thereafter, in accordance with the 1931 
Penal Code. Hence it is impossible for the punishment to 
have a retroactive effect, 

2) This category includes Fascists who availed 
themselves of their political position in order to gain 
financial advantages by bribery or other illegal means. 
Note, however, that in order to be punished pursuant to 
the above provisions the acts of the accused must have 
constituted crimes, which are not to be confused with the 
quasi-offenses mentioned under 5 and 6 below (pp .4 and 6 ). 

5. Persons who for Fascist motives or by taking advantage of the 

situation created by Fascism co. mitted acts contrary to 

principles of rectitude or political probity . 

a. Crime or class of criminals : "Persons who l) with Fascist 
motives or 2) by taking advantage of the political situa¬ 
tion created by Fascism, performed serious acts which, 
while not amounting to actual crimes, are contrary to 
principles of rectitude or political probity...," 

Art. 8«. DcLcLo P :7 «7«44» #159 . as amended by Art. 2. D.L.L . 
4.1.45. #2 , and by Art. 1. D.L.L. 26.4.45. #149 . 

b« Punishment: "... , .l) shall be deprived of the right to vote 
for a period not exceeding ten years or 2 ) shall be barred 
from holding public office for a period not exceeding ten 
years, or 3) shall be deprived of their political rights 
for a period not exceeding ten years." Art. 2. D.L.L. 
4.1.45. #2 and Art. 1. D.L.L, 26.4.45. #149. 


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- 5 - 


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Tribunals having .jurisdiction : Cf. l) Ch. V: A, le, p*30; 
2). Gh. V: B, la, ii, (4), P-37 ; 3) Ch. V: B, 2a, ii, 

(3), P.45 ; 4) Ch. V: B, 3a, ii, ( 2 ), p.47 ; 5) Ch.- V. C, 
lb, iii, p.53 i 6) Ch. V: F, 1, p.65. 

Comment : l) It is further provided that: "Persons who 
held executive or policy-making offices' in the Fascist 
Party shall in any event be subject to the temporary loss 
of the right to vote*" Art. 2. D.L.L. 4.1.45. #2 . and 
Art. 1* D.L.L. 26.4.45. #149 + The above-mentioned offices 
have been further described as follows: 

a) "Secretary arid vice-secretary of the 
Fascist Party; 

b) "Member of the Fascist Grand Council; 

c) "Member of the National Directorate of 
the Fascist Party; 

d) "Member of the National Council of the 
Fascist Party; 

e) "Inspector of the Fascist Party; 

f) "Federal Secretary and Federal Vice- 
Secretary; 

g) "Federal Inspector; 

h) "Political Secretary of a commune with a 
population exceeding 20,000; 

i) "Office of the M.V.S.N. (Fascist militia) 
in permanent active service with a higher 
rank-than centurione (equivalent 

to captain.)» D.P.C.M. 2.2.45 

2) The fundamental principle of non-retroactivity 
of the law cannot apply to the provisions establishing 
punishments for the acts mentioned under a, above (p. 4). 
The canon " nullum crimen sine lege, mulla poena sine lege " 
is also not applicable, since the acts described under a, 
above (p. 4) are not considered crimes . They are acts 
known as quasi-offenses. The offenders mentioned under a 
above, (p. 4) are to be committed to penal colonies, not 
because they are considered guilty of having committed a 


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- 6 - 


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• crime, but because they are considered dangerous to society* 

Pursuant to this theory the State may, under its police 

po^er, take precautionary measures ( "misure di aicurezza ") 

to safeguard'the public welfare. It should be noted that 

the Italian constitution ( Statuto ) contains no provisions 

preventing this type of legislation which, in effect, 

■ punishes persons who are not guilty of having committed a 

« criminal act.’ Many'similar restrictive measures were 

created or very largely extended by the Fascist legislature. 

Cf. Battaglini, G.: Diritto penale (1937), pp. 377 ff. 

Persons who conducted themselves in a manner inspired by Fascist 
malpractice to such an extent as to be regarded dangerous to the 

exercise of democratic liberties . 

a. Crime or class of criminals : ’'Persons who during the former 
political regime conducted themselves in a manner inspired 
bj lie methods and.malpractice (" malcostume ") of Fascism 

to such an extent as to be regarded dangerous to the 
exercise of democratic liberties.•••" Art. 8 . D.L.L. . 

27.7.44. #159 . as amended by Art. 3. D.L.L, 26.4.45. #149 . 

b. Punishment : "....may be committed, for a period of not less 
than one but not exceeding five years, 1 ) to a labor farm, 
or 2 ) to a work house, or 3 / to the " confino di poliz ia " 
according to the'provisions of Article ISO of the RAD. 

. ;■ «*tv. ' 1 

18. 6 .31.* #773', or 4) to concentration camps. Persons rr ho 
have incurred the foregoing sanctions shall, for the dura¬ 
tion of the sanction, lose their right to vote automatical¬ 
ly and without the necessity of a separate jucLgment. " 

Art, 8 .D.L.L. 27 , 7 , 44 . i-159 as amended by Art. 3. D.'L.L . 

26.4.45. 4149 , 

c. Tribunals having jurisdiction :.Cf. 1) Ch. V: A, le, p.30; 

2) Ch. V: B, la, ii, (4), p. 37 ; 3 ) Ch. V: B, 2a, i-t , (3), 

p. 451 4) Ch. V: B, 3a, ii, (2), p. 47; 5) Ch. V: C, lb, 

iii, p. 53; 6 ) Ch. Vi'-H, 1 , p.70, 

igl c T7.ICTB‘D 

























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d. Comment: Article ISO of the R.D. IS.6.31. #773, mentioned 
under b 3), above (p. 6), reads as follows: "The police 
confinement consists of one to five years compulsory labor 
in a colony or a commune of the Kingdom in which the con¬ 
fined person is not domiciled." 

Crimes Committed Subsequent to the Armistice . 

1. Neo-Fascists who collaborated ^ith the Germans . 

a. Crime or class of criminals : "Whoever, after 8 September 
1943, committed or shall commit crimes against the military 
defense of the State by collaborating with or assisting the 
German invader in any manner whatsoever...." Art. 5. D.L.L . 
27.7.44. #159 . 

b. Punishment : "....shall be punished in accordance with the 
provisions of the Penal Military War Code. Punishments 
provided for military personnel'shall also apply to 
civilians." Art. 5. D.L.L. 27.7:44. #159. 

c. Tribunals having .jurisdiction : Cf. l) Ch. V: A, lb-d, 
pp.28-291 2) Ch. V: B, la, ii, (5), p. 3S; 3) Ch. V: B, 

2a, ii, (2), p. 44; 4*) Chv V: 0, lb, i, p. 49 ; 5) Ch. V: 

E, lq, p. 63. 

d. Comments : 1) The following provisions apply only in the 
event that the Extraordinary Courts of Assizes have juris¬ 
diction and try the defendants (Cf. pp. 4Sff*): "Whoever, 
subsequent to the establishment of the so-called Italian 
Social Republic, held one*of the following offices or 
'engaged in any of the following activities, shall be con¬ 
clusively presumed to have collaborated with or assisted 
the German invader: 

1) "Ministers or undersecretaries of the 
self-styled government of the Italian 
Social Republic; or executive posts of a 
national nature in the Republican Fascist 
Party; 

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- 8 - 


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2) "President or members of the Special 
Tribunal for the Defense of the State or 
extraordinary tribunals established by 
the aforementioned government, or persons 
who held before said courts the office of 
public prosecutor; 

/ " • 

3) "Heads of provinces or secretaries or 
federal commissioners or other equivalent 
offices; 

4) "Editors-in-chief of political newspapers; 

•5) "High rankingofficers in the Blackshirt 
Militia with politico-military functions. 

Ij ^ 

"Persons who, having held one of the above-mentioned 
offices, assumed greater responsibilities, and in any event, 
those who held the offices or carried out the functions in¬ 
dicated in numbers 1 and 2 of the preceding paragraph, shall 
be punished with penalties prescribed in Articles 51 and 
54 of the Penal Military Ear Code; in other instances the 
provisions of Article 58 of the above-mentioned Code shall 
be applied. 

"In the event that other crimes were committed, the 
penalties provided therefor by the Penal Military War Code 
shall apply." Art. 1. D.L.L, 22.4.45.'#142 . 

2) Article 51 of the Penal Military War Code 
reads as follows: "A member of the armed forces who com¬ 
mits an act designed to favor the military operations of the 
enemy or to otherwise hinder the operations of the armed 
forces of the Italian State, shall be punished with death 
and degradation." Article 54 of the above-mentioned Code 
reads as follows: "A member of the armed forces who, in 
order to assist the enemy, corresponds with or furnishes 
information to the enemy shall be punished with death and 
degradation. In the event that the furnishing of ihforma- 
tion has not produced harmful effects, the penalty may be 
diminished. If assistance to the enemy has been offered 
but not accepted, the penalty shall entail imprisonment 
for not less than fifteen years." Article 58 of the said 


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- 9 - 


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Code reads as followsj "Within the territory of the State 
invaded or occupied by the enemy, whoever promotes the 
political interests of the enemy or commits an act designed 
to diminish' the loyalty of the citizens for the Italian 
State, shall be punished with imprisonment ranging from ten 
to.twenty years.’ 1 

3) The penalty imposed under b'above (p. 7) has 
a retroactive effect* when applied to civilians who col¬ 
laborated- with the Germans prior to 27 July 1944 ( i • e •, the 
date.of the passage of the above-cited decree), since prior 
to that date the Penal Military War Code did not apply to 
civilians. Although there, are no provisions in the Italian 
Constitution ( Statuto ) against the passage of retroactive 
legislation, the practice of enacting retroactive laws is 
contrary to the fundamental canon " nullum crimen sine lege . 
nulla poena sine le^e " (no ci*ime without law, no punish¬ 
ment without law). In addition, Article 2 of the 1931 
Penal Code expressly provides that: "No one shall be 
‘punished for an act which, in accordance with the laws in 
force at the time it wais committed, did not constitute a 
crime," (Cf, Battaglini G.: Diritto penale (1937), pp. 41 ff. 
With this principle in mind, eighteen anti-Fascist jurists 
on 10 July 1944 signed a strong manifesto which took ex¬ 
ception to similar retroactive provisions embodied in the 
first anti-Fascist decree for the punishment of Fascist 
crimes (R.D.L. 26.5.44* #134 published- in G.U. #32, 

31.5.44). Nevertheless, Vincenzo Azzolini," a civilian 
(former Governor of the Bank of Italy), was prosecuted 
and sentenced to thirty years imprisonment pursuant to 
the provisions of' the Penal Military War Code. 

Cf. R & A Report No. 2688, p. 22. 


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- 10 - 


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Crimes or Quasi-Off e nses.which nay.be Committed in the Future . 

1. Persons who reorganize or promote the reorganizat ion of the 

of the Fascist Party * 

a. Crimes or class of criminal s: "Whoever 1) reorganizes 
the Fascist Party, in any form or under any denomination 
whatsoever, or 2) promotes its reorganization..• 

Art. 1. D.L.L. 26.4.45. #195 , 

b. Punishment : "....shall be punished by ten to twenty years 
imprisonment." Art. 1. D.L.L. 26.A.45. #195 . 

c. Tribunals having .jurisdictio n; Cf. l) Ch. V: A, lc, p. 28; 
2) Ch, V: B, la, ii, (6), p.39. 

d. Comment : Cf. Comment under 8, d, 2) below, p. 14. 

2. Persons who participate in the reorganization or promotion of 

the reorganization of the Fascist Party . 

a. Crime or clas s of criminals : "Whoever participates" in 
the crime mentioned under la, above (p. 10). Art. 1, D.L.L . 
26.A.45. #195 . 

b. Punishment : "....shall be punished with two to ten years 
imprisonment." Art, 1. D.L.L. 26.4.45. #195 . 

c. Tribunals having -.jurisdiction : Cf.) lX Ch. V: A, lc, p. 28; 
2) Ch. V: B, 2a, ii, (4), p v 46. y . 

d. Comment : Cf. Comment under 8, d, 2) below (p. 14 ). In 
the present case it is even more difficult to draw a 
distinction between this crime and the quasi-offense des¬ 
cribed under 8, a, 1) below; (p. 13). 

3. Persons who by threat or violence prevent the exercise of 

democratic libertie s. 

a. Crime or class of criminals : "Whoever engages in Fascist 
activity hindering or obstructing by threats or acts of 
violence the exercise of civil or political rights of the 
citizens...." Art. 2. D.L.L. 26.4.45. #195 . 

b. Punishment : "....shall be punished with three to twelve 
years imprisonment, provided that his actions do not 

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- 11 - 


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’ constitute a more serious crime." Art. 2. D.L.L. 26.4.45 . 

mi. 

c. Tribunals having .jurisdictio n: Cf. 1) Ch. V: A, lc, p. 23 ; 
2) Ch. V: B, la, ii, (7), p. 39. 

d. Comment : Cf. Comment under 7, d, 2) below (p. 13). 

Persons who organize armed bands> for the purpose of r e establish ¬ 

ing the Fascist Party or preventing by threats or viol e nce the 
exercise of democratic liberties . 

a. Crime or class of criminals : "TThoever, for'the purpose of 
carrying on the Fascist activity described in the preceding 
Articles (i.e. la, 2a, 3a, above, p. 10), promotes, leads 
or subsidizes an armed band.,,." Art. 3. D.L.L. 26.4.45 . 

mi. 

b. Punishment : "....shall be punished, for this alone, with 
five to fifteen years imprisonment." Art. 3. D.L.L . 

26.4.45. #195 . 

c. Tribunals having .jurisdiction : Cf. 1) Ch. V: A, lc, p. 23;: 
2) Ch. V: B, la, ii, (8) , p. .39 . 

Leaders of armed bands who attempt to reortanizc the Fascist 

Party or by threats or viol e nee prevent the exered se of 
democratic liberties in such 'a manner as to provoke civil war • 

a. Crime or class of criminals : "The promoters and leaders of 
the crime described in article 3 (i.e. 4a, above p. 11) 
committed jointly with one of the crimes described in 
articles 1 and 2. (i.e. la, 2a, and 3a-,- above’p. 10), which 
owing to their gravity may provoke-or foster civil war...," 
Art. 5. D.L . L, 26.4.45'. #195 . 

b. Punishment : "....may be punished in accordance with the 

penalties provided for by article 2. D.L.L. 27.7.44. 

- «- 

(i.e. according to the penalty described’under A, lb, above, 
p. 1)." Art. 4. D.L.L. 26.4.45. 7*195 . 

c. Tribunals having jurisdiction : Cf. 1) Ch. V: £ 23. 

2) Ch. V; B, la, ii, (9),p. 39. 


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d. Comment ; Consequently, people guilty of the these crimes 
are punishable with death or life imprisonment* 

6 . Persons who by any means of propaganda incite others to the 

perpetration of any crime mentioned under 1-5 above • 

others 

a. Crime or class of cr im inals : "Whoever incites/to the per¬ 
petration of any of the crimes described in the preceding 
articles (i.e., la, 2 a, 3a, 4 a, and 5 a, above pp. 10 - 11 ) 
by disseminating printed material or false information or 
by means of any propaganda whatsoever*..." Art. 5. D.L.L . 
26*4.45. #195 . 

b. Punishment : "....shall be punish 3 d with two to ten years 
imprisonment." Art, 5. D.L.L. 26*4.45. #195 * 

c. Tribunals having .jurisdiction : Cf. l) Ch. V: A, lc, p. 28; 

2) Ch. V: B, 2a, ii, (5), p. 46. . 

d. Comment : Note that there is only a very slight difference 
between the type of crime described under a, above, p. 12 
and the quasi-offense mentioned under 8 a, 2 ) below, p. 13 . 

7• Former Fascists who conduct themselves in a manner inspired by 

Fascist malpractice in such a way as to endanger the exercise 

of democratic libertie s* 

a. Crime or class of criminals : "Persons who during the former 
political regime conducted themselves in a manner inspired 
by the methods and malpractice of Fascism and hereafter 
persevere in such conduct to such an extent as to endanger 
the exercise of democratic liberties***•" Art. 8 . D*L.L . 
27*7*44. #159 . as amended by Art. 3. D.L.L. 26*4.45. #149 * 

b. Punishment : "....may be committed, for a period of not 
less than one but not exceeding five years, 1 ) to a labor 
farm, 2 ) to a work house, 3 ) to police confinement ( confino 
di polizia ) according to the provisions of article 180 of 

R.D. 18*6*31. #773, or 4 ) to concentration camps. Pejrsons 

\ - ■ 

who have incurred the foregoing sanctions shall, for the-- 
duration of the sanction, automatically be deprived of the 

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right to vote without the necessity of a separate judgment*” 
Art. 8 * D*L.L. 27.7.AA. #159 . as amended by Art. A. D.L.L . 
26*4.A5. #149 * 

c. Tribunals havinm jursidiction : Cf. 1) Ch. V: A, le, p. 30 ; 
2) Ch. V: B, la, ii, ( 4 ), p. 37 5 3) Ch. Vs B, 2a, ii, (3), 
p. 45 ; 4) Ch. V: ;B, 3a, ii, (2), p. 47 ; 5) Ch. V: C, lb, 
iii, p. 36 ; 6 ) Ch. Vi H, 1, p. 70. 

d. Comment : 1) Article 180 of the K.D, 18.6.31 #773, mentioned 

under b, 4 ) above, (p, 12), reads as follows: "The 

police confinement lasts from one to five years, and takes 
place with compulsory labor in a colony or a commune of 

the Kingdom in which the confined person is not domiciled,” 

2) The main distinction between the crime des¬ 
cribed under 3 a above, (p. 10 ) and the qua si-offense defined 
under a above (p, 12 ), appears to be th t in the former 
case the defendant must have acted in a threatening and 
violent manner, whereas in the. latter instance punitive 
measures may be applied even without these aggravating 

circumstances. Cf. Comment under 8 , d, 2) below, (p, 14 ), 

3) Cf. Comment under A, 5d, 2) above (p. 5). 

8 . Persons who extol Fascism or commit acts designed to con ¬ 

tribute to the reestablishment of the Fascist Party , 

a. Crime or class of criminals : "Persons who 1 ) commit acts 
designed to contribute to the reestablishment, in any form 

' or under any denomination whatsoever, of the suppressed 
Fascist Party or 2) with any oral or written manifesta¬ 
tions publicly extol its leaders, institutions and 
ideologies.,,.” Art. 3. D.L.L. 26*4,45, #149 . 

b. Punishment : ”,...may incur the same punitive measures as 
described under 7 b, above (p. 12 ), ”even though the act 
does not constitute a crime,” Art. 3. D.L.L. 26.4*45. fr 149 * 

c. Tribunals having jurisdiction : Cf. 1) Ch. V: A, lc, p, 28, 

2) Ch. V: H, 1, p* 70. 

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Comments : 1) The punitive measures described under 7b 
above (p. 12) are not mandatory, since in accordance with 
Italian legal practice a large discretion is vested in the 
magistrate as to whether or not a particular offense should 
be punished* 

2) It is difficult to differentiate between the 
classes of criminals mentioned above under la (p. 10) and 
a (p. 13). Nevertheless, it is significant that when the 
decree was passed which made it a crime to commit acts 
described under la above (p. 10), the decree which made it 
a crime to commit the acts mentioned under a above (p. ]2) 
was not repealed either specifically or generally* Both 
decrees - were enacted on the same day, i*e* on 26 April 1945# 
This seems to indicate that the legislative bodies en¬ 
visaged two different types of offenses. The greatest 
difficulty lies in making a distinction between la, 2) 
above (p* 10), which establishes a penalty for "promoting" 
the /reorganization of the Fascist Party, and a, l) above 

(p, 13) which- provides for punitive measures for "acts 
designed to contribute to”the reestablishment of the Fas*- 
cist Party. It is conceivable, however, that less con¬ 
clusive evidence, insufficient to find a person guilty in 
the former case, would, nevertheless, be held sufficient 
to justify the- enforcement of punitive measures in the 
latter instance, 

3) Cf, Comment under A, 5d, 2) above (p, 5)* 




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II. EXTENUATING CIRCUMSTANCES 

Former Fascists who participated in the war against the Germans 
or who have the benefit of. the extenuating circumstances envisaged by 
the Penal Code of 1889 may incur milder punishments than those con¬ 
sidered heretofore. 

A. Opposition to Fascism and Participation in the Fight against 

the Germans. 

1. "For the crimes described in" Ch. I: A, above (p. l), 

"the sentences entailing the death penalty and life im¬ 
prisonment may be commuted to imprisonment for not less 
than five years, and other punishments may be reduced by 
one-fourth provided the accused: 

a) opposed Fascism before the beginning of the present 
war, or 

b) actively participated in the fight against the Germans." 
Art. 7., 27.7,44 #159 . 

2. "If the accused distinguished himself by acts of valor in 
the fight against the Germans, he need not incur any 
punishment whatsoever. Art. 7., 27.7.44 #159. 

B. Extenuating Circumstances as provided by the 1889 Penal Code. 

"If there are extenuating circumstances as envisaged by the 
Penal Code of 1889, sentences imposing life imprisonment and 
the death-, penalty will be commuted to thirty years imprison¬ 
ment, while other punishments will be reduced by one-sixth." 

Art. 7., 27.7.44 #159 . 

C. Comments. 

l) Reduction of penalties owing to the presence of.extenu¬ 
ating circumstances is not applicable to penalties for 
acts described in Ch. I: A, 5 and 6 ; C , 7 and 8 (pp. 4-6 
and 12-13 ) above, since extenuating circumstances can 
be taken into consideration only when crimes are committed, 
and the acts described in Ch. I: A, 5 and 7 and 8 are 


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16 


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not considered crimes, but merely "illeciti” (i.e. quasi¬ 
offenses which do not amount to real crimes). 

2) Reduction of penalties for the reasons stated under A 
above (p. 15) does not apply to crimes committed in 
Ch. I: C, above (p. 10). 

3) The provision concerning extenuating circumstances en¬ 
visaged by the 1889 Penal Code are specifically made appli¬ 
cable to the penalties described in Ch. I: A and B, above 
(op.1,7). It is assumed that these provisions also apply 
to the penalties described in Ch. I: C, above (p. 10 ), 
although the law'does not expressly so provide. 





) 




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. PROVISIONS AFFECTING DEFENSES 

Fascist criminals have been deprived of most "defenses" which 
normally available to the accused. 

A. Revocation of Pardons. 

1. Provisions of the Law ; "....the amnesties and pardons 
granted after 28 October 1922 shall not be applicable 
to the crimes mentioned in the present decree /T.e. to 
Ch. I: A and B above ,pp. 1,7/ and, if they have already 
been granted, shall be revoked." Art. 6., 27.7.44 $159. 

2. Tribunals having jurisdiction to revoke pardons : The 
"declaratory judgments" conferring the amnesties and 
pardons mentioned above shall be revoked in chambers by 
the courts which originally delivered them. Decisions 
pronouncing the revocation of amnesties and pardons are 
final and not subject to review. Art, 11., D.L.L . 

15.9.44 #198 . 

3. Comment: 

— 

a) Article 8 of the Italian Constitution ("Statuto") 
provides that: "The king'may grant pardons and com¬ 
mute sentences." However, nothing is said in the 
Constitution, about the king 1 s right to revoke pardons 
and unless such rights can be inferred f'rbnPthe above- 
mentioned constitutional provision, the revocation of 
pardons is unconstitutional. 

b) Although pardons granted to Fascist criminals have 
already .been or will be revoked, (the King or) the 
Lieutenant General of the Realm may still - though 
this is highly unlikely - grant pardons in the future 
to persons convicted of Fascist crimes even in cases 
where the death penalty has been imposed. 

B. Inapplicability of the Criminal Statute *of Limitations. 

"The Criminal Statute of Limitations 

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1. Provisions of the Law: 
















18 


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("prescrizione") Tor crimes and penalties mentioned in 
the present decree /T.e. Ch. I: A, B, and C, 7-8 above, 
pp. 1,7 and 12-137 s ^ a H not run in favor of persons 
guilty of these crimes who, up to the present, have 
escaped punishment because of the existence of the 
Fascist regime." Art. 6. D.L.L. 27.7,44. ffi.59 . 

2. Comments: 

a) Although it is realized that there is no such thing 
as a "criminal statute of limitations" in Anglo- 
American law, this term has been used because it is 
believed that it will be more readily understood by 
persons conversant with the Anglo-American system of 
law than another generic expression for the Italian 
word "prescrizione." 

b) Note also that in any event the criminal statute of 
limitations does not apply to crimes punishable with 
death or life imprisonment. Cf. Art. 157 and 172 

of the 1931 C. P.; Battaglini, G.: Diritto penale 
(1937), pp. 209 and 352, 

Annulment of Fraudulent or Frivolous Judgments against Fascists. 

1. Provisions of the Law: "The sentences imposed for these 
crimes /T.e. crimes committed by Fascists/ can be declared 
juridically non-existent when the decision was in¬ 
fluenced by the conditions of moral coercion existing 
under Fascism." Art. 6. D.L.L. 27.7.44. #159 . 

2. Tribunal having jurisdiction to vacate judgments : Cf. Ch. 

V: D, la, ii, below, p.6l. 

3. Comment: 

a) The sentences which are to be vacated according to the 
above provisions are those which were frivolously im¬ 
posed against Fascists (and even then were often not 
executed) in an attempt to satisfy public opinion. 

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19 


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Cf., e.g. , the spurious trial of Dumini (one of the 
murderers of Matteotti). 

• b) It is furthermore significant that R.D.L. 27.10.27. 
#1983 has been repealed. This decr.se..pr.Gvi&ed that 
certified copies of official docket eiitrjLes• should 
not include entries of penal judgments for crimes 
committed before 4 November 1926 "with'national 
motives or-in connection with such motives, cases 
of murder excepted.” Art. 1. D.L.L. 28.12.44. #429. 

D. Provisions Limiting the Effect of A to C above : "the pro¬ 
visions of the present article /T.e, A to C above ,pp.17-137 
shall not be applied to crimes punishable with a maximum 
imprisonment not exceeding three years.” 'Art. 6. D.L.L. 
27.7.44. #429 . 

E. Abrogation of Laws and Judgments passed under the neo-Fascist 
Regime. 

1. Provisions of the Law: The following-acts executed by the 
neo-Fascist government have no juridical significance 
and are absolutely void: 

a) All legislative enactments passed by the neo-Fascist 
government; 

b) All sentences passed by the Special Tribunal for the 
Defense of the State or by any newly-ccnstituted 
courts with penal jurisdiction; 

c) Sentences passed by the ordinary penal tribunals on 
the basis of penal legislation enacted by the so-called 
neo-Fascist regime. Art. 1, D.L.L. 5.10.44. #249 . 

2. Comment s: 

a) Hote that sentences passed by ordinary penal tribunals 
on the basis of pre-neo-Fascist legislation are not 
affected by .the above provisions. However, the pro¬ 
visions mentioned under C, 1, above, (p. 1$ are 
applicable also to these sentences. 


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b) Since all laws enacted by the neo-Fascist government 
are void ab initio , there can be no defense based on 
the theory of non-retroactivity of the law. 

Abolition of Prerogatives . 

1. Provisions of the Law: "For the execution of the present 
decree ./affects Ch. I: A, B, and C, 7-8, above, pp. l,'7r.d 
and 12-13 > as well as the establishment of the High Court 
of Justice, Ch. V: A, below, p. 27 7 all prerogatives 
including those described in articles 36, 37, and 47 of 
the Constitution (Statuto) are abolished." Art. 42, D.L.L . 
27.7.44. #159 . 

2. Comment: 

1) Articles 36, 37, and 47 of the Italian Constitution 
(Statuto) read as follows: 

a) Art. 36: "The Senate becomes a high court of 
justice by royal decree to judge crimes of high- 
treason and attempts against the State, and to 
judge ministers accused by the Chamber of Deputies. 
"In these cases the senate is : not a political body. 
It may only concern itself with the judicial busi¬ 
ness for which it was convoked. All other acts of 
the Senate, in these cases, are-null and void." 

b) Art. 37: "Unless • caugkt- in flagrante hereto n§ 
senator can be arrested except by order of the 
senate. It alone is competent to judge crimes of 

'• which Its.members are accused." 

c) Art. 47: "The Chamber of Deputies' has the right 
to accuse ministers of the King, and to bring them 
before' the’high court of justice." 

2) The provisions mentioned under 1 above, which purport 

• to repeal certain-articles of the Statuto, are clearly 
1 unconstitutional (Of. Battaglini, G.: Diritto penale 


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21 


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(1937), pp.6l-62) • On the other hand, under the above- 
mentioned articles of the Italian Constitution, Fascist 
senators could only be tried by the Senate, a large 
proportion of whose members were themselves compromised 
by Fascism. For this reason the constitution pro¬ 
vision for the establishment of the Senate as a high 
court of justice to try ministers and judge crimes of 
high treason was disregarded, and another high court 
of justice was set up for the purpose (Cf. Ch. V: A, 
belo T w,p. 27). In this connection it is important to 
remember that the Fascist regime ignored many of the 
provisions of the Cor.otitution. As a result, many of 
them have become obsolete or meaningless and even if 
some of them could now be enforced, they might have 
unforeseen and undesirable consequences. Many other 
provisions of the Constitution can not be revived and 
put into operating owing to changed conditions. For 
example, article 48 of the Constitution provides, in 
effect, that all laws passed by only one of the legis¬ 
lative chambers are null and void; if this article 
were enforced, all laws enacted after the dissolution 
of the Chamber of Deputies (in 1928) would be uncon¬ 
stitutional and void whereas nearly all laws passed 
after 1928 are considered valid and enforceable. 
Furthermore, it is important to point out that the 
Constitution is irrevocably linked with the institution 
of the monarchy and that it includes no provisions for 
amendments, stating that it is "perpetual and irrevo¬ 
cable." It is entirely conceivable that in view of 
a) the obsoleteness of fundamentally important 
articles of the Constitution (enacted on 4 March 1848) 
and b) the present state of political transformation - 


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22 


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with its many revoluntionary aspects - an entirely 
new constitution may be framed by the new legis¬ 
lative bodies and ratified by the people in the near 
future. Issues of constitionality, therefore, are 
not, at present, of cardinal importance. 



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23 


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IVv • --THE- • DEATH PENALTY AND TRIAL BY JURY 

In view of the fact that many Fascist criminals will incur the 
death penalty, it is dee«ed useful to discuss the current legislation on 
the question of capital punishment as compared with the treatment of this 
problem in the Fascist and pre-Fascist laws. The right to trial by jury, 
a fundamental privilege "of' the accused in the Anglo-American system of 
law, has also been given consideration. 

A. The Death Penalty . 

1. Under the 1889 Penal Code . Under the pre-Fascist penal laws 
there were no provisions imposing the dealth penalty. The 
maximum punishment was life imprisonment. Art. 11, 1889 C .P. 

2. Under the 1931 Penal Code . The Fascist legislature in 1926 
‘introduced the death penalty. L. 25.11.26 $2068; and cf. 

Art. 17".' 1'9^T Penal Code. The Fascist Penal Code of 1931 
imposes the death“penalty a) for crimes committed against 

t 

M the safety of the State" and b) for ordinary non-political 
crimes which, because of their depravity and because of the 
absence of extenuating circumstances, tend to exclude any 
hope of re-educating the accused. R.P.D. pp. 68-69 ■ So 
for instance Article 72 of Vne 1931 Penal Code provides 
that if the defendant commits two or more crimes, each of 
*0 which is punishable by life imprisonment, he shall be 

punished with the death penalty. (The articles of the 1931 

- . i 

Penal Code which impose the death penalty are the following: 
72, 241-243, 247, 253, 255^ 257, 258, 261-263, 276, 280 
/specifically repealed by Art. 3. D.L.L. 14.9.44. $288/, 284- 
287, 295, 298, 422, 438, 439 and 576.) 

3. Unde r the Current Laws . 

In General: In August 1944 a decree was enacted which 
abolished the death penalty for all crimes envisaged by 
the 1931 Penal Code (cf. 2, above) Art. 1. D.L.L . 

10.8.44. $224. Trf'the same decree, however, it was 



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24 - 


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specifically provided that the repeal of the death 
penalty was not applicable to the Penal Military Codes 
or to the defascistization legislation. Subsequently, 
tbie death penalty was reintroduced for crimes involving 
armed robbery. Art. 1. D.L.L. 10.5.45. #234. - ; 

b. The Death Penalty under the Defascistization Laws : 

i. Classes of crimes for which the death penalty is not 
imposed: For the following categories of crimes or 
quasi-offenses mentioned in Ch. I, above, the penalty 
does not include death: A, 2, 3, 4 (if the crime 
was committed prior to 1931), 5 and 6, above (pp. 2-6) 
and C, 1-4 and 6-8, above, (pp. 10-13). 

-Aw~ Classes .of crimes for which, the death penalty is 
mandatory or discretionary: In the following 
categories of crimes, mentioned in Ch. I, above, 
the death penalty may be imposed: Ch. I: A, 1, 
above (p. i): A, 4, above (p. 3 ), if the crime was 
committed after 1926 in certain instances (Art. 276, 
284, and 286 of the 1931 C.P.) or after 1931 in other 
instances (Art. 258, 262, and 285 of the 1931 C.P.); 

Ch. I: B, above (p. 7); and Ch. I: C, 5, above (p. n). 
Fascists who after 1926 attempted to deprive the 
King of his liberty are punishable with death (Art. 

276, 1931 C.P.); Whoever, with Fascist motives or 
for purposes of reinstating Fascism in Italy after 
the fall of Mussolini (25 July 1943) but before 
8 September 1943, collaborated with the Germans, 
may be punished with death in accordance with 
Articles 258, 262, and 284-286 of the 1931 Penal Code. 

Trial by Jury jn Criminal Cases . 

1. No constitutional provisions fo r trial by jury: In the 
Italian Constitution there are no provisions whatsoever 


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guaranteeing a trial by jury in criminal cases. 

Under the pre-Fascist legislation ; Jury trials in certain 
, types of criminal proceedings (i.e. in actions which came 
under the jurisdiction of the Courts of Assizes) were in¬ 
stituted in Italy by the lav/ of 13 November 1859. 
Enciclopedia Italiana , Vol. XVII, p. 366; R.D. 6.12.65 . 
#2626; L. 8.6.74. #1937 . provisions for trial by jury 
in criminal cases which the Court of Assizes had juris¬ 
diction to ’try ’ (veiyserious crimes such as murder and 
treason), were incorporated in the 1913 Code of Penal Pro¬ 
cedure. • The Court of Assizes was made up of a judge and 
ten jurors, the latter deciding only questions of facts. 

Art. 54 and 55, Norme di Attuazione e di Coordinamento 
e Disposizioni transitorie per il Codice di Procedura 
Penale del 1913. 

Under the Fascist lav/s and the Code of Penal Procedure of 
1931: In 1931 trial by jury in criminal cases was abolished 

Art. 20, R.D. 23.3.31. #249 ; cf. Di Martino, U.: Commento 
al Nuovo Codice di Procedura Penale (1932), p. 651. Under 
the new system, in lieu of the presiding judge and jurors, 
two judges and five "assessors" made up the Court of 
Assizes. The assessors were chosen from lists of citizens 
belonging to "social categories" which purported to ensure 
"seriousness, intelligence and culture." The whole court 

I 

(including the assessors) passed on both questions of fact 
and questions of law. Only the judges, however, could 
perform procedural functions (Book I, Title IV, 1931 C.P.P.) 
Di Martino, U.: Commento al Nuovo Codice di Procedura 
Penale (1932), P. 652; Enciclopedia Italiana, Vol. XI, 
p. 542. 


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26 


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Under the current defascistization laws: Ift the Courts of 
Assizes which try Fascist criminals popular judges have been 
substituted for the assessors. .Their- functions are very 
similar to those of the assessors. Cf. B, 1, b, iii, (3), 
below (p .41 ). It is important to note that persons who 
will be tried pursuant to the provisions set forth in Ch. I: 
A, 2b, 3b and 4b, above (pp. 2-3) > although punishable in 
accordance with certain, provisions of•the 1889 Penal Code, 
will still have no right to a trial by jury, because they 
will be tried pursuant to the provisions of the 1931 C.P.P. 
and not the 1913 C.P.P. (which contains provisions for trial 
by jury). Art. 10. D.L.L. 27.7.44. #159. 




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V. THE COURTS AND COMMISSIONS ENTRUSTED WITH THE PUNISHMENT OF FASCIST 
CRIMINALS -- ' 


The punishment of Fascist crimes is entrusted to both special and 
ordinary penal courts, while commissions set up in each province apply 
the sanctions against those accused cf the so-called quasi-offenses. The 
jurisdiction and organization of the courts and commissions are thoroughly 
explained in this chapter. The procedure followed before each court or 
commission is discussed if it is peculiar to the particular court or com¬ 
mission, or if it is necessary to understand its functioning* 

A. The High Court of Justice . 

The High Court of Justice is an extraordinary court set up for the 
specific purpose of defascistization. It began to operate in mid-September 
1944, a little over a month after the decree which established it was en~ 
acted. (Cf. R & A Report No. 2688, p. 21) 

1. Jurisdiction . 

a. Crimes described in Ch. I: A. 1. above . 

i. Provisions of the law : Normally, the High Court of 
Justice tries persons accused of crimes described in 
Ch. I: A, 1, above (p. 1), for which it has original 
and exclusive jurisdiction. Art. 2. D.L.L. 27.7.44 . 


ii. Comment : The establishment of this court clearly 

contravenes the provisions of Art. 36 of the Italian 
Constitution (cf. Ch. Ill: F, 2, comment l), a), above 

* 

•c p. 20), because it purports to confer jurisdiction on 
"a new court to exercise functions which, according to 
. the Statuto , pertain to the Senate set up as a High 
Court of Justice. It must be remembered, however, that 
the Senate is not qualified, for political reasons, 
to try traitors and Fascist criminals. Cf. Ch. Ill: 

F,. 2, comment 2 ) above, (p. 20). 


... : 


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Exceptional circunsi-- neon . 

i. Provisions of the l:r : However, ’’in cases of excep¬ 
tional gravity, the High Commissioner is empowered to 
modify the provisions affecting jurisdiction, and may 
confer jurisdiction on the High Court of Justice to try 
persons other than those mentioned in Article 2 (Ch. I: 
A, la, above, p. 1) even for crimes not envisaged in 
the same article (Ch. I: A, la, above, p. l)." 

Art. 41. D.L.L. 27.7.44. , J r'159 . 
ii. Comment : Consequently, the High Commissioner may con¬ 
fer jurisdiction on the High Court to try persons 
guilty of any crimes incurring punishments for the 
enforcement of which he exercises supervisory functions, 
(Cf. Ch, VI: B, 2a, below, p, 76). So, for instance, 
in the Azzolini case (Cf. R & A Report No. 2688, p. 22) 
the defendant was tried by the High Court and sen¬ 
tenced to thirty years imprisonment for a crime which 
belonged to the class mentioned in Ch. I: B, above, 

(p. 7). Similarly, the generals Pentimalli and Del 
Tetto were tried by the High Court, of Justice for 
crimes which belonged to the same class (Cf. R & A 
Report No. 2688, pp. 26-28, 54-55). For additional 
extraordinary powers conferred on the High Court of 
Justice, cf. c and d, below (p. 28-29). 

Authority to disregard formality of pleading and render 

judgments falling finder the or canary juris die t i-on of. 

other tribunals . 

i. Provisions of the law : The High Court of Justice is 
given authority to depart from the ordinary rule s of 
criminal procedure and, if the facts warrant it, may 
disregard mistakes or omissions in the allegations of 
the indictment (" richiesta del decreto di citazi.one ") 
and may impose the suitable - even if greater - 

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- 29 


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punishments or sanctions, even if the subject matter 
falls within the regular, jurisdiction of other ordi¬ 
nary or extraordinary tribunals. Art. 5. D.L.L . 

13.9.44. 7^19 8. 

i. Comment : According to these provisions the juris¬ 
diction of the High Court is qualified . And cf. 
b. above (p.28) and d, below, (p.29). 

Conflict of .jurisdiction . 

i. Provisions of the la w; In the event that the crimi¬ 
nal proceedings are such as to fall under both the 
ordinary jurisdicti n of the High Court of Justice and 
the regular jurisdiction of other special «r ordinary 
tribunals, the High Court of Justice has jurisdiction 
to try the whole subject matter. The High Court of 
Justice,, however, for reasons of expediency, may order 

A i • ■ • 

' 'severance of the proceedings. In such-cases, the 

order"of the High Court is final (i.e., not subject 

♦ 

to any kind of review). Art, 6. D.L.L. 13.9.44. #196 . 

,i. Comment s: 1) In the above situation the jurisdiction 
of the High Court of Justice is similar to that exer¬ 
cised by the courts of equity in Anglo-American law, 
when they have jurisdiction to decide questions affect¬ 
ing the whole subject matter. Note that, also accord¬ 
ing to the above provision, the jurisdiction of the 
High Court of Justice is qualified . 

2) Cf. a" so b and c, above (p. 28)* The 

. •'t 

reason for the very broad jurisdiction conferred upon 
' the High Court of Justice dates back to the time when 
the High Cou: t of Justice was established and the 
ordinary courts were so overburdened trying ordinary 
criminal cases that they could not handle trials of 
Fascist criminals. However, after the establishment 


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-■30 - 

of the Extraordinary Courts of Assizes (cf. C, below, 

pp. US ff.) and the Provincial Commissions (cf. F and 

✓ 

H, below, p. 65 and p. 70) and the resumption of the 
normal functioning of the ordinary courts (cf, B, below, 
pp. 35 ff.), the situation appeared to have considerably 
improved. It is questionable, therefore, whether the 
High Court of Justice has since exercised this juris¬ 
diction or will assume jurisdiction to try persons 
accused of crimes which fall within the regular juris¬ 
diction of the ordinary tribunals, the Extraordinary 
Courts of Assizes, or the Provincial Commissions, For 
conflicts of jurisdiction between the High'Court of 
Justice and the Military Tribunals, both extraordinary 
courts, cf. E, la, ii, comment 3), below, (p. 64 ). 

Crimes described in Ch. I: A. 5 and 6: C. 7. above , 
i. Provisions of'the law & If, during the course of the 
trial, it should become apparent that the acts com¬ 
mitted by the accused do not amount to real crimes but 
constitute one of the quasi-offenses mentioned in 
Ch. I: A, 5a and 6a; C, 7a, above, (pp. 4, 6, and 12), 
the High Court of Justice may apply the sanctions as 
provided in Ch. I: A, 5b and 6b; C, 7b, above, (pp. 4, 

6 and 12). Art. 7. D.L.L. 13.9.44. #198 . 
ii. Comments : l) Although it is likely that the above 

provisions were repealed by Article 2 and 8 of D,L.L . 
26.4.45. #149 . (cf. Comments under F, la, below p. 65 ). 
The High Court of Justice nevertheless has jurisdiction 
to try persons accused of the quasi-offenses mentioned 
in Ch. I: A, 5a and 6a; C, 7a, above (pp. 4, 6, and 12) 
pursuant to the provisions set forth under b-d, above, 
(PP* 28-29). 

2) It is questionable, however, whether, 
after the Provincial Commissions, described under 









- 31 - 


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F and H, below, (pp. 65 and 70) were established and 
began to function, the High Court of Justice continued 
to exercise this jurisdiction. Cf. in this connection 
the comment under d, ii, 2 ), above, (p. 29 ). 
Organization . 

a. Composition of the High Court of Justice and appointment of 

its members ! The High Court of Justice comprises a 

president and eight members appointed by the Council of 

Ministers from high-ranking judges, on active service or 
from 

'"ifetired, and/other outstanding persons of unassailable 
character. Art. 2. D.L.L. 27.7 .LL, #159 * 

b. Provisions for the appointment of substitutes ; A number 
of substitutes - not to exceed nine - may be appointed to 
the High Court of Justice in order to ensure its regular 
functioning. 

The president calls orr the- substitutes to sit on the bench 
when regular members are absent or unable to attend the 
trial* • 

In trials which are expected to last for a long time, the 
president may order a substitute to participate in the 
sessi-bris of the court. During the trial the substitute 
will take the place of any permanent member of the court 
who is absent or unable to attend the trial. However, 
after the conclusion of the trial no substitution is 
admissible. 

In case the president is absent or unable to attend the 
' trial, the member of the court with the highest judicial 
rank, or the oldest, nember case of equal rank, tempo¬ 
rarily assumes the duties of the president. Art. 2. D.L.L . 
13.9.AA. #198 . 

c. Provisions concerning the separation of the High Cc»urt of 
Justice into two sections ? If the necessity arises, the 

High Court of Justice may, by decree of the President of 


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- -32 - 


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the Council of Ministers, be divided into two sections. 

Nine members chosen from the regular and substitute mem¬ 
bers are assigned to each section by the decree which 
establishes the sections. If the High Court is divided 
into two sections, four substitutes may be appointed in 
addition to the ones mentioned above. 

The president of the High Court presides over the first 
section; the member with the highest judicial rank or 
the oldest member, in the event of equal rank, presides 
over the second section. 

The president of the High Court may substitute members 
of one section who are absent or unable to attend the 
trial with members belonging to the other section'. 

Art. 2. D.L.L. 13.9.4A. #1 98. 

Procedure . 

a. Provisions concerning the preliminary stages of the trial : 

It is beyond the scope of the present report to explain 
in detail the rules governing Italian criminal procedure* 
However, a concise description of eome of the more funda¬ 
mental distinctions between the Italian and the Anglo- 
American systems may prove helpful* 

The Anglo-American system of indictment by a grand jury 

is unknown in Italian criminal practice. In lieu thereof 

the investigations which take place prior to the trial 

♦ 

are handled by a magistrate in a pre-trial stage called 
" istruzione ." which roughgly corresponds to the indictment 
in Anglo-American criminal procedure* The ’’istruzione" 
may be either "formal 1 * or, in exceptional cases, "summary." 
In the summary type of istruzione the proceedings which 
precede the trial are greatly expedited* At the close of 
the istruzione the. court passes an interlocutory judgment 
ordering either 1) that a trial be held ( rinvio a giudizio ) 
if on the basis of the evidence the court believes the 

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- 33 


iu STRICT ED 


accused to be guilty, or- 2 ) that the proceedings be 
discontinued ( ordine di non doversi procedere ), if it is 
convinced that the accused is innocent or if the evidence 
is insufficient to justify a trial. (The order for dis¬ 
continuance is called ordine di proscioglimento ). 
Particularly during this stage of the proceedings the 
attorney general (" pubblico ministero ") exercises a very 
important function. Except in trials which come under 
the jurisdiction of the " pretori 11 (cf. B, 3, below, p. 47 ) 
the attorney general promotes the penal action in crimi¬ 
nal courts, participates in the proceedings and promotes 
the execution of the orders and judgments of the court. 
(d’Amelio Mariano: Nuovo Digesto Italiano (1939), Vol. II 
p. 242; Digesto Italiano . Vol. XV, part two, pp. 573-79). 

i. Summary p^e-trlal proceedings : For crimes which fall 
within the jurisdiction of the High Court of Justice, 
the High Commissioner for Sanctions against Fascism 
(who in proceedings before the High Court of Justice 
assumes the functions of attorney general, cf. 

Ch, Vis B, 2b, below, p. 76) proceeds with the sum¬ 
mary istruzione . in accordance with the provisions 
of Book II, Title III of the 1931 C.P.P. Art. 3 . 

D.L.L, 13.9.44. #198 . 

ii. Time limit within which the accused must appear 

before the court : The time limit within which the 

accused must appear before the High Court of Justice 
may not be less than eight days except in cases en¬ 
visaged by Article 183 of the 1931 C.P.P. which 
grants additional traveling time if the accused is 
not present within the commune in which the court is 
located. Art. 3. D.L.L. 13.9.44. #198 . 

iii. Provisions affecting the quashing of the proceedings : 
"If the High Commissioner, in proceedings which fall 


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- 34 - 


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under the jurisdiction of the High Court of Justice, 
decides that there is not sufficient evidence to 
justify the trial, he orders the quashing of the 
proceedings. If, however, the proceedings have gone 
further and reached the stage of the summary istruzione 
and the High Commissioner decides that the trial 
should not be held, he forwards the documentary 
evidence to the High Court of Justice with a request 
that the proceedings be quashed. If the court ac¬ 
cepts the request, it passes a judgment in chambers 
quashing the proceedings. Otherwise, the court re¬ 
turns the documentary evidence to the High Commis¬ 
sioner so that he may request the court to order the 
accused to appear# Art. 4. D.L.L. 13,9.44. #198 # 

b. Finality of decisions rendered by the High Court o f 
Justices The judgments and rulings of the High Court 

of Justice are final and not subject to review. Art, 9 . 

D.L.L. 13.9.44. #198 # But.cf. Comment, under D, la, i, (3), 

(a), (ii) : , below (p.60), Comment under D, la, 1, 

(2), (a), (ii), below (p. 58). 

c. Tort action against the accused : In criminal proceedings 
before the High Court of Justice "civil action" may be 
instituted pursuant to the 'provisions of Articles 22 ff, 
of the 1931 C.P.P. This means that-persons who have been 
injured or have sustained damages at the hands of the 
accused may become a party to the criminal proceedings 
for the purpose of collecting damages. Art. 1. D.L.L, 
5a0,44.#229 , 

d. Provisions concerning the clerk of the High Court of 

Justice : The clerical functions of the High Court of 

• Justice are.discharged by employees of the office of 
court clerks assigned'to the High Court by executive 
order of the''Minister of Justice. Art. 10, D.L.L. IB.9^44 1 

fi 28 . I 

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- 35 


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Ordinary Criminal Courts . 

The courts which, under ordinary circumstances, have jurisdiction 
to try or review criminal cases are the following: l) the (or¬ 
dinary) Courts of Assizes, 2) the Tribunals, 3) the Praetors, 

4) the Courts of Appeals, and 5) the Supreme Court of Cassation* 

V .. 

1. The (ordinary) Courts of Assizes , 
a. Jurisdiction. 

i. In general : The (ordinary) Courts of Assizes have 
jurisdiction to try persons accused of crimes for 
which the law imposes any of the following punishments: 
1) death, 2) life imprisonment, or 3) imprisonment for 

a) a minimum period of not less than eight years or 

b) a maximum- period of not less than twelve years. 

Art, 29, 1931 C.P,P . Examples : (1) If the punishment 
far'the crime is 12 to 16 years imprisonment, the 
Court of Assizes:has jurisdiction because the minimum 
penalty exceeds. 8. years;, and also because the maximum 
penalty exceeds;.12 years; (2) if the punishment for 
the crime is 2 to 12 years imprisonment, the Court 

of Assizes has jurisdiction because, although the 
minimum penalty is less than 8 years, the maximum 
penalty is not less than 12 years; (3) if the punish¬ 
ment for- the crime is 8 to 10 years imprisonmen.t, the 
Court of Assizes has jurisdiction because, altbnough 
the maximum penalty is less than 12 years, the minimum 
‘ penalty is not less than 8 years; (4) if the pu.nish- 
ment for the crime is 6 to 10 years imprisonmen.t, the 
Court of Assizes does not have jurisdiction bec*ause 
not only is the maximum penalty less than 12 ye ars but 
also the minimum penalty is less than 8 years. (In 
this last example the courts which have jurisdiction 
are the Tribunals; cf. B, 2a, below, p. 44). 


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- 36 - 


RESTRICTED 


Cf. d T Amelio Mariano: Nuovo Digesto Italiano * Vol. Ill, 
p. 470. -.. 


Comment : But note that, as a general rule, aggravating 
circumstances must be taken into account when determine- 
ing the jurisdiction of a court. Cf. d’Amelio, Nuovo 
Digesto Italiano (1939), Vol. Ill, p. 470; 

Battaglini G.: Diritto penale ~f-1937) l ,.p,. 229; Art, 61 , 


100 and 112, 1931 C.P.P. 


Specific instances . . 

(1) ■ Crimes described in Ch. I: A. 2. above ; Si nee 
; these crimes are punishable with a minimum sen¬ 
tence of not less than 18 years imprisonment, per¬ 
sons accused of such crimes are tried by the (ordi¬ 
nary). Courts of Assizes. Art. 4. D.L.L. 27.7,44 . 



Comments ; a) But cf. qualified jurisdiction of 
the Extraordinary Courts of Assizes under C, lb, 
iibelow, (p. 52 ) t 

b) and cf. exceptional jurisdiction of 
the High Court of Justice under A, lb-d, above, 
(P. 28-29). 

(2) Crimes described in Ch. I: A. 3. above ! Since 


these crimes are punishable with a minimum sen¬ 
tence of not less than 12 years imprisonment, 
persons accused of such crimes are tried by the 
(ordinary) Courts of Assizes. Art. 4. D.L.L. 




. 27 .7 ..44. #159 . 

Comment ; Cf. Comments under 1), a) and b) above, 
which are also pertinent here* 

(3). Crimes described in Ch. I: A. 4. above * Since 
jurisdiction of the ordinary criminal courts 
depends upon the type of the punishment* persons 




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■ICTED 


- 37 - 


guilty of the crimes mentioned in Ch. Is A, 4> 
above,'(p. 3), may be tried by either a) the 
(ordinary) Courts of Assizes, b) the Tribunals, or 
c) the Praetors, depending upon the type of punish¬ 
ment imposed for each specific crime envisaged 
under Ch. Is A, 4, above (p. 3), at the time it 
was perpetrated. The (ordinary) Courts of Assizes 
have jurisdiction to try persons guilty of specific 
crimes if these crimes are punishable with any one 
of the penalties mentioned under i, above (p. 35)* 
Art. A. D.L.L. 27.7.44. #159 . 

Comment s Cf., however, comments under (l), a) and 
b) above, which are also applicable to the crimes 
mentioned hereunder# 

(4) Quasi-offenses described in Ch. Is A, 5. 6; C. 7 

above t Normally, punishments for quasi-offenses 

are not imposed by the courts# but by quasi¬ 
judicial commissions under the police power of the 
State. According to the.provisions of Article 7. 
D.L.L. 13«9#44* #193, however, if during the trial 
it appears that the acts committed by the accused 
(although not amounting to real crimes) belong to 
the class of quasi-offenses described in Ch# I: 

A, 5, 6; C, 7, above (pp. 4, 6, and 12), both 
ordinary and extraordinary courts are given juris¬ 
diction to apply the sanctions specified in Ch. Is 
A, 5, 6; C, 7, above (pp. 4, 6 and 12). Subsequent 
to the passage of the above-mentioned decree, how¬ 
ever, another decree was passed which may have had 
the effect of revoking this special jurisdiction 
of the ordinary criminal courts. (For the juris¬ 
diction of the High Court of Justice and the 
Extraordinary Courts .of Assizes, cf. respectively, 


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- 38 


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A, le, above (p. 30) and C, lb, iii, below (p. 53 ), 
If a conflict of jurisdiction arises, and the 
ordinary courts apply the above-mentioned sanctions, 
the accused must take an exception before judgment 
impo-sing the sanctions is passed. In such an 
event, the accused may, under Art. 37 and 542. 

1931 C.P.P., have the case reviewed by the Supreme 
Court of Cassation, which, on its part, may annul 
the proceedings if it should hold that the ordi¬ 
nary courts did not have jurisdiction to handle 
such cases. If, on the other hand, the accused 
•does not take an exception before judgment is 
passed, it is believed that the question of lack 
of jurisdiction may not be raised later on appeal 
(cf. Comments under F, la, l), below, p. 65 ). 

Cassiano Alberto: Elementi di diritto processuale 

. 

penale (1933) pp. ' 60 - 65 . 

Crimes described in Ch.I: B. above . 

Persons accused of the crimes described in Ch. Ij 

, 

B, above, (p. 7 ), are tried by the ordinary Courts 
of Assizes, provided that: 

a) the crime is normally punishable by the ordi¬ 
nary Courts of Assizes. Cf. i, above, (p. 35); 

b) the accused is a civilian . Art. 4. D.L.L. 

27.7 +44. #159 ; 

c) the crime is not punishable by the extraordi- 

< 1 

nary Courts of Assizes. Cf. C, lb, i, (1), and 
( 2 ) (c) below, (p. 49 and 50 ); 

d) the High Court of Justice is not trying the I 
accused under its extraordinary jurisdiction in 
accordance with the provisions set forth under A, 
lb-d, above (p. 23-29 )• (Cf. Azzolini trial, 

R & A No. 2638, p. 22). 

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- 39 - 


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( 6 ) Crimes described in Ch. I: C, 1. above . 

Persons accused of the crimes mentioned in Ch. I: 

C, 1, above (p. 10), are tried by the (ordinary) 
Courts of Assizes, since-they-are- punishable with 
a minimum sentence of not less than ten years im¬ 
prisonment and a maximum sentence of not less than 

• twenty years imprisonment. 

Comment : The ordinary Courts of Assizes have ex¬ 
clusive jurisdiction to punish these crimes except 
in extraordinary instances when the High Court of 
Justice may have jurisdiction to punish them. 

Cf. A, lc-d, above, (pp. 28-29). 

(7) Crimes described in Ch. I: C. 3. above . 

Persons guilty of the crimes mentioned in Ch, I: 

C, 3, above, (p. 10), are tried by the (ordinary) 

© 

Courts of Assizes, since they are punishable with 
a maximum sentence of not less than 12 years 
imprisonment.' • ’ 

Comment : Cf. Gomihent under ( 6 ) above (p. 39 ) 
which'is also applicable to'these crimes. 

( 8 ) Crimes described in Ch. I: C. A. above . 

Persons-accused of the crimes mentioned in Ch. I: 

C, 4> above, (p. 11), are tried by the (ordinary) 
Courts of Assizes, since they are punishable with 

• • a maximum sentence of not less than 15 year’s im¬ 
prisonment. 

Comment : Cf. Comment under ( 6 >) above (p. 39) 
which is also applicable to these crimes. 

(9) Crimes described in Ch. I: C. 5. above . 

Persons accused of the crimes mentioned in Ch. I: 

C, 5, above, (p. 11), are tried by the (ordinary) 
Courts of Assizes, since they are punishabl.e either 


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- 40 - 


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by death or with life imprisonment. 

Comment : Cf. Comment under ( 6 ), above, (p-39) 
which is also applicable to these crimes, 
b. Organization , 

i. Composition of the ordinary Courts of Assizes : The 
ordinary Courts of Assizes are composed of two regular 
judges and five popular judges. Art, L. D.L.L, 

27.7.AA. 7--159 . and Art, 1, D.L.L. 5.10.AA. #209 . 
ii. Appointment of the regular judges ; The two regular 
judges who sit on the Court of Assizes are: 

1) -The presiding judge, who is a president of a section 
of ar Court of Appealsj 

2) A second judge, who is either a) a councillor 
( n consigliere ,t ) of a Court of Appeals, or b) the presi¬ 
dent of :a Tribunal, or c) the president of a section 

of a Tribunal. 

The judges of the Courts of Assizes are appointed 
each year by decree. 

Should the president of the Court of Assizes for any 
'reason..be unable to attend the trial, the first presi¬ 
dent of. the Court of Appeals on the advice of the 
attorney general ( 11 procurators generate ") will sub¬ 
stitute for him another president of a section of a 
Court: of ; Appeals or another regular judge of a Court 
of Assizes, Art. A. D.L.L. 27.7.AA. #159 . as amended 
by Art,. 1. D..L.L, 6.8.AA. #170 : Art. 2. R.D. 4,10,35 . 
# 1889 . 

iii. Appointment, qualifications, and oath of the popular 
judges . 

.(1) Appointment : The popular judges are appointed by , 

'1 . 0 ■ 

the first'president of the Court of Appeals on 
the advice of the attorney general (" procurators 
generate ") of the same court. A register of 

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- 41 


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popular judges is drawn up for each judicial dis- 

) 

trict in which a Court of Assizes is established. 

The first president decides the number of popular 
judges to be listed in each register. Art. 3 . 

D.L.L. 6.8.44. #170 . 

(2) Qualifications : In order to qualify as a popular 
judge, a person must meet the following require¬ 
ments: 

a) he must be an Italian citizen and enjoy full 
' civil and political rights; 

b) he must not be under thirty or over sixty-five 
years of age; 

. c) he must be a person of unassailable integrity; and 
d) he must not Have belonged to the Fascist Party 
and must never have engaged in Fascist activities* 

• 'Art.'2. D.L.L. 6.B.44. #170 . 

(.3.) Oath : Article 12 of R.D. 4.10.35. #1889, which con- 
t tainsprovisions for the oath of assessors, is 
repealed. (Cf. Ch. IV; B, 3 and 4> above, pp. 25-26). 
;In lieu.thereof, the popular judges, who are sworn 
in’ by the president of the Court o** Assizes, take 
substantially'the same oath that was required of 
jurors by .Article 440 of the 1913 C.P.P. It is 
significant, however, that the word "sentence" 

•iLas'-noW been substituted for the word "verdict," 

Which appeared in the oath prescribed for jurors 
by the 1913 C.P.P, The previsions concerning the 
oath are mandatory. Art. 2. D.L.L. 5.10.44. 7 #290 . 
Procedure . 

1 

i. Rules -expediting'proceedings : Hhen persons accused of 
Fascist *crimes are tried by the Courts of Assizes, the 
procedure, called ^ giudizio direttissimo " is followed 


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- 42* - 


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whenever possible. The ftludizio direttissimo consists 
of a summary interrogation of the accused by the at¬ 
torney general, who (if he believes that the accused 
should be tried) may order him brought before the 
court without th^- necessity of following 
the ordinary pre-trial procedure called istruzione 
(cf. A, 3a, above, p. ..)• This expeditious pro¬ 
ceedings, however, may only be followed l) if the 
accused has been arrested by police officers without 
a warrant and 2) if the Court of Assizes a) is in 
session or b) is to be in session within five days 
after the arrest took place. Art. 244. and 502 of 
1931 C.P.P. 

If the procedure called giudizio direttissimo cannot 

* 

be followed, the attorney general proceeds with the 
summary istruzione * Art. 4. D.L.L, 6.8*44. #170 ; 
and Art.'7. D.L.L. 26*4.45. #195 . 

(1) Special rules for crimes described in Ch. I: A , 

2-6: B: C. 7. above I In proceedings involving 

crimes mentioned in Ch. I: A, 2-6; B; C, 7, above, 
(pp. 2-7 and 12), if the summary istruzione pro¬ 
cedure is followed, the time limit for the ac¬ 
cused to appear, required by Article 405 of the 
1931 C.P.P., is reduced from 15 to 8 days (pro- 

. . i. ...(■■ 

vided that the accused is present within the 
commune where the court is located; otherwise, 
additional traveling time is granted in accord¬ 
ance with'Article 183 of the 1931 C.P.P.) Art. 4. 
D.L.L. 6.8.44. #170 . 

Provisions for rcviev-f . 

(1) No appeal against judgments of (ordinary) Courts 

of Assizes : No appeal may be taken from the 

judgments rendered by the (ordinary) Courts 01 '? 

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43 - 


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Assizes. Cl*. Cassiano, Alberto: Elementi di 
diritto .processuale penale (1933), pp. 60-85. 

(2) Review, by the Supreme Court of Cassation: 

(a) General rule : Although the judgments of the 
(ordinary) Courts of Assizes are not subject 
to appeal, they may be reviewed by the Supreme 
Court of Cassation by way of ricorso or 
revisione. Cf. D, la, i, (2) and (3), below, 
(PP»«57 and 60). When decisions imposing 
punishments for crimes listed in Ch. I: C, 1 
and 3-5, above, (pp. 10-11) arc rendered, the 
ordinary rules governing the review of judg¬ 
ments of the (ordinary) Court of Assizes are 
observed, 

.’ (b) Review of judgments imposed for crimes listed 
in Ch. I: A, 2-6; B; and C. 7. above : Judg¬ 
ments rendered by the (ordinary) Courts of 
Assizes inccases involving crimes mentioned in 
Ch. I: 2-6; B; and C, 7, above, (pp. 2-6, 7 and 

12), are final and not reviewable, except by 

• . • . * . -J ) 

way of revisione . Cf. D, la, i, (3), below, 

(p. ). Art, 5. D.L.L. 6.8.44. #170 . 

iii. The Attorney General : The Attorney General (" pubblico 
ministero”) who handles trials before the Court of 
Assizes (as well as before the Supreme Court of 
Cassation and the Courts of Appeals) is called 
procuratore general e* (Cf. d T Amelio, M.: Nuovo 
digesto Italiano (1939), Vol, IX, p. 242). 

iv. Applicability of general rules governing the procedure 

before the Court of Assizes : The general rules govern¬ 
ing the procedure in the Courts of Assizes shall 
be observed insofar a.s they are consistent with the 
above-mentioned.^provisions• Art. 6. D.L.L, 6.8.44. tt170. 


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- 44 - 


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The Tribunals , 
a. Jurisdiction * 

i. In general ; The Tribunals have jurisdiction to try 
persons guilty of crimes which are punishable 


ii. 


1) neither by the Court of Assizes, 2) nor by the 
Praetors* Art, 30. 1931 C.P.P. 

In addition, tribunals have appellate jurisdiction in 
sentences rendered in the first instance by the 
Praetors* 

Comment : Therefore, the Tribunals have jurisdiction 
if both of the following requirements are met: 
l) the minimum punishment imposed for the crime must 
be less than 8 years and 2) the maximum punishment 
imposed for the crime must be less.than 12 years but 
must exceed 3 years* 

Specific instances . 

(l) Crime s described in Ch. I: A, 4. above ! The 

jurisdiction of the Tribunals depends on the type 
of punishment which may be imposed, Cf. la, ii, 

(3), above, (p, 36), The Tribunals have juris¬ 
diction to try persons guilty of specific crimes 
if they are punishable with the penalties mentioned 
under i, above, (p. 44) Art. 4. D,L.L, 27,7,44 * 




(2) Crimes described in Ch, I: B, above ! It is doubt¬ 
ful whether any of the crimes envisaged in Ch, I: 

B, above, (p* 7), (which are punishable in accord- 
. 

ance with the precisions of the Penal Military 
War Code),are of such a nature as to fall within 
the ordinary jurisdiction of the Tribunals. Whether 
they do or not depends on the interpretation of 
Article 5. D.L.L, 27.7.44. #159 * which prescribes 


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- 45 


RESTRICTED 


that persons who collaborated with the Germans 
shall be punished in accordance with the provi¬ 
sion's of the C.P.M.D.G. (cf. Ch. I: B, la-b, above 
p. 7). It is not clear, however, which articles 
of the C.P.M.D.G. were intended to apply to per¬ 
sons guilty of having collaborated with the 
Germans. If the legislature envisaged the ap¬ 
plicability of only article 51, 54? and 58 of the 
C.P.M.D.G. (cf.< Ch« I: B, Id, 2), above, p. 8), 
then the Tribunals have, no jurisdiction to try 
persons who collaborated with the Germans, because 
the punishments prescribed by these articles are 
more severe than those which may ordinarily be 
imposed by the Tribunals. If, on the other handj 
it was the intention of the legislature that other 
articles of the C.P.M.D.G. should apply, then the 
Tribunals may have jurisdiction to try some of 
these crimes. However, even if the punishments 
prescribed by these other articles are such as 
to fall within the ordinary jurisdiction of the 

* h * • '• • • 

Tribunals, persons accused of these crimes are 
punishable by the Tribunals only if: 

a) the accused is a civilian ; and 

b) the High Court of Justice is not trying the 
accused under its extraordinary jurisdiction in 
accordance with the provisions set forth under 
A, lb-d, above (p. 28-29) • (Cf. Azzolini trial, 

R & A Report No. 2688, p. 22). 

For a possible conflict of jurisdiction between 
the Tribunal and the Extraordinary Court of 

• 'i*“ i 1 . < * 

Assizes, cf. C, lb, i, (2), c), below, (p. 50). 

(3) ^uasi-offense described in Ch. I: A. 5-6; C. 7, above 

Cf. discussion under la, ii, (4) above, p. 37* 

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- 46 - 

which is also pertinent here* 

(4) Crimes described in Ch. I: C, 2, above : Since 
these crimes are punishable by 2 to 10 years im¬ 
prisonment, they do not fall either under the 
jurisdiction of the Court of Assizes or under that 
of the Praetors, and are therefore punishable by 

the Tribunals. Cf. Comment under a, i, above, (p. 44 

(5) Crimes described in. Ch. I: C. 6. above : These 

• * * 

crimes fall under the jurisdiction of the Tribunals 
for the reasons stated under ( 4 )» above, (p. 46). 

b. Organization : The organization of the Tribunals is not 
modified for the trials of Fascist criminals. For 
organizations of the Tribunals, cf. dVimelio, Mariano: 

Nuovo digesto italiano (1939) Vol. IX, p. 242* 

c. Procedure : There are no special provisions for the pro¬ 
cedure to be followed before the Tribunals in trials for 
Fascist criminals. For ordinary procedure, cf. 1931 C.F.P. I 
and laws of judicial procedure (" ordinamento giudiziario ”). 
The following facts (included in the laws governing 
ordinary procedure), however, are noteworthy: 

i. Provisions for review : Appeals from sentences imposed 
by the Tribunals may be taken to the Court of Appeals. 
Art. 513. 1931 C.P.P * Cf. 4, below, (p. 48), 

Insofar as the Supreme Court of Cassation^ jurisdic¬ 
tion to review judgments is concerned, cf. D, la, i, 
below, (p. 56). 

ii. Appellate .jurisdiction of the Tribunals : The Tribunals 
have appellate jurisdiction from sentences imposed by 
the Praetors. Art. 512. 1931 C.P.P. Cf. 3, below, 
(P*47). 

iii. The Attorney General : In cases tried before the 

Tribunals, the Attorney General is called procuratore 
* del Re . 


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Praetors . 

a. Jurisdiction . 

i. In general : Praetors-have jurisdiction to try persons 
guilty of crimes punishable by imprisonment for a 
maximum period not exceeding 3 years (provisions for 
fines which may be imposed by the Praetors have been 
omitted). In seme instances, however, the nrocuratore 
generale is empowered to confer on the Tribunals 
jurisdiction over crimes which are ordiharily triable 
by the Praetors. Art. 31. 1931 C.P.P. 

■* ii. Specific instances * 

(1) Crimes described in Ch. I: A, 4. abrve * The 
jurisdiction of the Praetors depends on the type- 
of punishment which may be imposed. Cf. la, ii, 

(3), above, (p. 36 )• The Praetors have juris- 

4 

diction to try persons accused of specific crimes 

1 * 

4* ' _ 

if they are punishable with the penalties men- 

* X . 

tioned under i, above, *(p. 47)V Art. 4. D.L.L. 
27.7.44. #159 ,... 

(2) Quasi-offenses described in Ch. I: A. 5-6. C. 7. 

above : Cf. discussion under la, ii, (4), above, 

(o. 37) , which is also pertinent here, 

b. Organization : Concerning the organization-of this court, 

cf. d T Amelio, Mariano: Nuovo Digesto.Italiano (1939)> 

Vol. IX, pp. 242 ff. This court consists of only one 

magistrate, i.e., the Praetor. Cf. Caspiano, A.: Elementi 

di Diritto Processuale Penale (1933)> pp." 60-85, 

.Vi:. 

c. .Procedure. _ 

i. Provisions for review : Appeals from sentences imposed 

by the Praetors may be taken to. the Tribunals. 

5 • - 

Art. 512. 1931 C.P.P . Cf. ; 2c,...ii, abote, (p. 46). 

Insofar as the Supreme Court of Cassation’s jurisdiction 

*\ r r ’ ■ 

to review judgments is concerned, cf. D, la, i, below, 
(p. 56). 


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- 48 - 


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ii. Attorney General : In cases tried by the Praetor 

the functions of attorney ‘general 'are performed by the 

‘ f 

, ... Praetor himself* 

4. Courts with exclusively appellate jurisdiction * 

a. The Courts of Appeals : These courts have only jurisdic¬ 
tion to decide appeals from judgments passed by the 
Tribunals• Art. 513. 1931 C.P.P . 

b. The Supreme Court of Cassation; For the Supreme Court of 
Cassation*s appellate jurisdiction, cf. D, la, i, below, 
(p. 56). 

C. The Extraordinary Courts of Assizes . 

The Extraordinary Courts of Assizes were set up for the specific 
purpose of punishing neo-Fascists who collaborated with the Germans. As 
the name implies, they are extraordinary courts which will cease function¬ 
ing as ,sQon as they have accomplished the main purpose for which they were 
established* 

1. Jurisdiction . 

w 

a. Limited .jurisdiction . 

i. Territorial and other limitation s: The decree which 
- established the Extraordinary Courts of Assizes pro¬ 

vided that they be set up only (1) in the Italian 
territories which were still occupied by the Germans 
on 22 April 1945, and (2) in other territories which 
, may be designated by decree of the Lieutenant General 
of the Realm on the advice of the President of the 
Council of Ministers after deliberation with the 
Council of Ministers* Art. 1. D.L.L. 22.4.45. #142 . 
ii. Limitations of time :- The jurisdiction of the Extra¬ 
ordinary Courts of Assizes in territories which had 
already been returned to Italian administration at the 
time the decree establishing them was enacted, termi* 
nates six months after the publication of the decree 


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- 49 - 

in the Gazzetta Ufficiale (i.e., on 25 October 1945)• 

In territories which had not been liberated at the 
time the decree was published in the Gazzetta Ufficiale 
or, if liberated, had not yet been transferred to 
Italian administration, the jurisdiction of the 
Extraordinary Courts of Assizes ceases six months 
after the decree establishing them becomes effective 
pursuant to ratification by ordinance of the Allied 
Military Government. 

Thereafter, the crimes which were formerly punishable 
by the Extraordinary Courts of Assizes will be punished 
by'other courts in accordance with the ordinary rules 
governing jurisdiction. Art. 18 and 19. D.L.L . 

22,4.45. #142 . 

Comment ; Pursuant to the provisions mentioned under 
a, above, (p. 43), Extraordinary Courts of Assizes 
w'ere established in the provinces of Bologna, 

Ravenna, and Forli by decree of the Lieutenant 
General of the Realm. Art. 1. D.L.L. 11.5.45. #136 . 

The above-mentioned decree becomes effective on the 
day‘it is ratified by ordinance of the Allied 
Military Government, Art. 2, D.L.L. 11.5.45. #136 . 

Crimes which fall within the .jurisdiction of the Extra ¬ 

ordinary Courts of Assizes : Subject to the limitations 

(p. 43) 

specified in the. provisions under a, i and ii, above,/the 

Extraordinary Courts .of Assizes have jurisdiction to try 

persons accused, of the following crimes: 

i. Crimes described in Ch. I: B. above . 

(1) Provisions of the lav; : ,T The Extraordinary Courts 

of Assizes have jurisdiction to try persons who, 

after 8 September 1943, committed crimes against 
0 

• the military defense of the State,” listed in 
Ch. I: B, la, abpve (p. 7).. £rt, 1. D.L.L . 


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50 - 


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22,4.45, #142 . 

(2) Comments ; a) Cf, Comment in Ch. Is B, Id, l), 
above, (p, 8). 

b) On the question of conflict of 
jurisdiction between the Extraordinary Courts of 
Assizes and the Military Tribunals, cf, E, la, 
ii, below (p. 63). 

c) It would seem that subject to the 
above-mentioned limitations, the Extraordinary 
Courts of Assizes have at least concurrent’ juris¬ 
diction to try civilians who collaborated with 

the Germans and who, in territories other than 

* 

those mentioned under a, ii, above (p. 48 ) 
are tried by the ordinary Courts of Assizes 
(cf. B, la, ii, (5), above, p. 38).. In other 
words, it is likely that the ordinary Courts of 
Assizes have no jurisdiction to try civilians 
who collaborated with the Germans in the ter¬ 
ritories described under a, i, above, (p. 48 ), 

The question whether the Extraordinary Courts of 
Assizes have either 1) exclusive, 2 ) concurrent, 
or 3 ) no jurisdiction to try crimes committed by 
civilians who collaborated with the Germans after 
8 September 1943 - which, in territories other 
than those mentioned under a, i, above, (p. 48) 
fall under the jurisdiction of the Tribunals - 
is a much harder one to decide. On the one hand, 
Article 9 of D.L.L. 22*4.45. #142 provides that' 
the regular laws governing the ordinary Courts of 
Assizes shall be applied, if pertinent, to the 
Extraordinary Courts of Assizes; and, according 
to these laws, the Courts of Assizes have no 


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51 - 


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jurisdiction to try persons guilty of crimes 
punishable by imprisonment for a minimum period of 
less than 8 years and a maximum period of less than 
12 years, (cf. 3 , la, i, above, p. 35 ). On the 
other hand. Art. 1* D.L.L. 22.4.45, #142 presribes 
that the Extraordinary Courts of Assizes shall 
have jurisdiction to try persons who collaborated 
with the Germans and does not specifically limit 
their jurisdiction to conform with the rule ap¬ 
plicable to ordinary criminal courts, which provides 
that the jurisdiction of a court shall be governed 
by the type of punishment imposed by the law; on 
the contrary, Art. 1. D.L.L. 22.4*45. #142 ex¬ 
pressly provides that "in the event that other 
crimes were committed" (i.e* crimes other than 
those punishable by Articles 51, 54> and 58 of 
the C.P.M.D.G*), the Extraordinary Courts of 
Assizes shall have•jurisdiction to apply the 
penalties provided therefor by other articles of 
the C.P.M.D.G. (Cf. Ch. I: B, Id, Comment 2), 
above, p. 8 ). It is, therefore, almost certain 
that the Extraordinary Courts of Assizes have juiis- 
diction to try civilians who collaborated with the 
Germans after 8 September 1943 for crimes which, 
under the provisions of the C.P.M.D.G*,,are punish¬ 
able by imprisonment: for a minimum period of less 

than 8 years and a maximum period of less than 

♦ 

12 years., 

Should a.dispute on the question of jurisdiction 
arise between the Extraordinary Courts of Assizes 
on one hand and the ordinary Courts of Assizes or 
the Tribunals on the other hand, it will have to be 


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- 5 ? - 


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decided by the Supreme Cdurt of Cassation in accord— 
ance with Articles 3V and 542 of the 1931 C.P.P. 

Cf. D, la, i, (2) and (3), below (pp. 57 and 60). 

d) It is very unlikely that there is a 

conflict of jurisdiction between the Extraordinary 

Courts of Assizes and the High Court of Justice; 

however, should a dispute arise between the two 

courts, the decision of the High Court of Justice 

on the question of juii sdiction is believed to be 

revi^wable by way of ricorso by the Supreme Court of i 

Cassation. Cf.D,l,a,i,(a),(ii), below. Comment l)(p. 
Crimes described in Ch. I: A, 2-4.. above . 

(1) Provisions of the law i "The Extraordinary Courts 
of Assizes have jurisdiction to adjudicate the 

' crimes described" in Ch. Is A, 2-4, above, (pp. 2—3)j 
"committed by persons accused of the crimes men¬ 
tioned 1 in Ch. I: B, above, (p. 7). Art. 2, D.L.L . 
22.4.45. #142 . 

(2) Comments : a) Note that the Extraordinary Courts 
of Assizes only have a qualified jurisdiction to 
try persons accused of the crimes mentioned in 
Ch. Is A, 2-4, above (pp. 2-3). In other words, 
the Extraordinary Courts of Assizes may not try 
persons who are accused of any or all of the crimes 
listed in Ch. I: A, 2-4, above (pp. 2-3), unless 
they are also accused of having collaborated with 
the Germans. 

b) The Extraordinary Courts of Assizes 
clearly have concurrent (although qualified) juris¬ 
diction with the ordinary Courts of Assizes. But 
cf. discussion on conflict of jurisdiction between 
Extraordinary Courts of Assizes and the Tribunals 

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- 53 - 


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•in the comment under i, (2), c), above, (p. 50) 
which is also applicable to the crimes committed 
hereunder (i.e, under (1), above, (p. 52). 
iii• Q uasi-offenses described in Ch, I; A. 5-6; C, 7. rr.bove : 

In view of the conclusions reached in the discussion 

under B, la, ii, (4), above, (p. 37), it is question- 

% 

able whether the Extraordinary Courts of Assizes have 
jurisdiction to impose the sanctions provided by law 
for the above-mentioned quasi-offenses. Cf. F, la, 
Comment 1), below, (p, 65). 

Organization , 

a. Establishment of Extraordinary Courts of Assizes and Sections 
of Extraordinary Courts of Assizes : Extrabrdinary Courts 

of Assizes have been or will be established in accordance 

with the provisions set forth under la, above, (p. 48) 

In addition, sections of Extraordinary Courts of Assizes 

may be established by decree of the First President of the 

* Court of Appeals, (or, if the capital of the judicial 

district where the Court of Appeals is located has not yet 

been liberated, by the nearest First President of the Court 

of Appeals)• Art. 3. D.L.L. 22.4.45. #142 . 

Comment : The rules which, as hereafter explained, are 

applicable to the Extraordinary Courts of Assizes also 

apply to the sections of the Extraordinary Courts of 

Assizes, unless it is expressly provided otherwise. 

Art. 7. D.L.L. 22.4.45. #142 . 

b. Composition of the Extraordinary Courts of Assizes : The 
Extraordinary Courts cf Assizes are composed of a regular 
judge who presides and four popular judges. Art. 6. D.L.L. 
22.4.45. #142 , 

c. Location of Courts ; The Extraordinary Courts of Assizes 
are set up in the capital of the province. Sections of 
the above-mentioned courts, however, may be established in 

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54- 


RE STRIP TED 


localities' other than the capital. Art. 3. D.L.L. 22.4«45 » 
# 142 # 

d. - Appointment of the president and a substitute : The presi¬ 

dent of .the Extraordinary Court of Assizes is appointed by 
the First President-of the Court of Appeals of the judicial 
district (or, if the)capital of the judicial district where 
the Court'of Appeals is located, has not yet been liberated, 
by the nearest First President of the- Court of Appeals) 

• from judges whose rank is not lower than that of councillor 
of a Court of Appeals. The appointment is made within ten 
days after the decree establishing tfie Extraordinary Courts 
of Assizes becomes effective. A substitute president may 
bo appointed in the same way. Art. 6. and 8. D.L.L . 
22.4.45. #142 . 

Comment : Persons who arp related by blood or marriage in 
the third degree may not officiate as judge (regular or 
popular) or attorney general in the same^ Extraordinary 
Court of Assizes. Art. 11. D.L.L. 22.4.45. #142 . 

e. Appointment of popular judges ! Within seven days after 
the decree establishing the Extraordinary Courts of Assizes 
goes into effect, the Committee of National'Liberation of 
the provincial capital, after coming to an agreement with 
the Committees of National Liberation of other important 
provincial centers, must draw up a list of at least one 
hundred adult citizens (or one hundred and fifty if the 
population of the province*exceeds one million) whose moral 
and political integrity is unassailable> and send it to the 
president of the Tribunal in the provincial capital* 

In the course of the next seven days, the president of the 
Tribunal must draw up a second list’ of fifty (or seventy- 
five, if the population of the province exceeds one million 
persons, choosing them from the lists compiled by the 


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- >5 - 

Committees of National Liberation, after he has ascertained 
that they are pe'rsonsoof unassailable political and moral 
standing. 

The popular judges are then chosen by lot from the list of 
persons compiled by the president .of the Tribunal, The 

» 

oath prescribed for the popular judges of the ordinary 
Courts of Assizes is also mandatory for these popular 
judges. Cf. B‘, lb, iii, (3), above, (p. 4l) . Art. 4. 5. S 
and 9« D.L.L. 5. 7P1A2 . 

f. Attorney General T s office : By order of the attorney general 
of the Court of Appeals (or of the nearest Court of Appeals, 
if the capital of the judicial.district where the ?ourt of 
Appeals is located has not yet been liberated)., an attorney 
general 1 s office shall be set up with every Extraordinary 
Court of Assizes. 

The brder must be published within,ten days after the 
decree establishing the Extraordinary Courts of Assizes 
becomes effective, and must specify the number and rank of 
magistrates assigned to the office. 

Lawyers'of unassailable moral .and political integrity with 
an unimpeachable political past and of proven ability may 
also be chosen from the lists presented by the Committees 
of National Liberation to fill positions in the attorney 
general 1 s office. Art. 10. D.L.L, 22. L. 45. #142 , 

Procedure , 

a. Rules expediting procedure , 

i. TrJhen trying persons accused of crimes punishable by 

the Extraordinary Court of Assizes, the above-mentioned 
attorney general*s office will proceed with the summary 
istruzione (cf, 1c, i, above, p.i&i)* However, if. 
the attorney general, on the basis of the available 
evidence, is convinced of the guilt of the ‘accused, 


/ - 


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- '56 - 


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he may order that the procedure called giudizio diret - 

tissimo be followed,, provided the requirements specified 

by law are satisfied. Art. 502. 1931 C.P.P . and Art. 1 4 < 

* 

D.L.L. 22.4.45. //142 . 

. ii. The time limits as established in the 1931 C.P.P. for 
pre-trial proceedings and the trial are reduced'by one- 
half. Art. 13. D.L.L. 22.4.45. #142 . 

. iii. The judgments of the Extraordinary Courts of Assizes 
must be filed in the clerk*s office within five d&ys 
after they have been delivered. Art. 15. D.L.L. 

b. Provisions for review : Ricorso to the Supreme Court of 
Cassation against judgments of the Extraordinary Courts 
of Assizes is allowed in accordance with the provisions of 
the 1931 C.P.P. Cf. D, la, i, (2) and D, 2 below, (pp .57 
and 62) Art. 16. D.L.L. 22.4.45 .*#142 . 

c. Tort action against the accused : In criminal proceedings 
before the Extraordinary Courts of Assizes no "civil action"] 
may be instituted. (Cf. A, 3c, above p. 34 ). Art. 13 . 

D.L.L. 22.4.45. #142 . 

/ 

d. Applicability of general rules governing procedure of 
Courts of Assizes : The general rules governing the pro¬ 
cedure in the Courts of Assizes shall be observed insofar 
as they are consistent with the above-mentioned provisions. 
Art. 9. D.L.L.' 22,A.45. f/142 . 

D. The Supreme Court of Cassation . 

«• . 

In penal matters the Supreme Court of Cassation is the ordinary 

court of last resort. Consequently, all the judgments passed by this court 

are final and not subject to review. Art. 552. 1931 C.P.P . 

?: 

1. Ordinary penal sections of the Supreme Court of Cassation , 
a. Jurisdiction . 

i. Ordinary appellate jurisdiction . 

(l) In general : As has been pointed out above, appeals) 

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- 57 - 


}■; STRICTER 


from judgments of the praetors may be taken to the 
Tribunals and from judgments of the Tribunals to 
the Court of Appeals, but no appeals are admissible 
from judgments of the Courts of Assizes or the 
Court of Appeals. As a general rule, on appeal, 
witnesses - except the accused - are not examined, 
the appellate court, however, may - at its dis¬ 
cretion - order that new documents be introduced 
in evidence and may reexamine experts and other 
witnesses. Art. 518 and 525 ( . 1931 C.P.P , On 
appeal, therefore, not only questions of lav; but 
also questions of fact may be reconsidered. The 
Supreme Court of Cassation does not hear any cases 
on appeal, but has jurisdiction (in the instances 
mentioned below) to review judgments of lower 
courts in two ways: a) by n ricorso n and b) by 
11 re vi si one . n 

(2) Ricorso to the Supreme Court of Cassation : The 

Shpreme Court of Cassations appellate jurisdiction 
called ricorso roughly corresponds to the writ of 
error or certiorari in the Anglo-American system 
of law. 

(a) Provisions establishing the grounds for ricorso 

(i) From judgments of ordinary criminal courts : 

Ricorso may be taken against sentences 
against which no appeal lies and against 
sentences rendered on appeal, if the lower 
court: 

1) has not applied or has erroneously 
applied provisions of substantive 
criminal law; 

2) has not followed mandatory ( a pena di 


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- 53 **. 


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nullita. inammissibilita o decadenza 1 *) 
rules.of criminal procedure; or 
y) - has exceeded its jurisdiction. 

The ricorso . however 9 docs not lie l) for 
grounds not allowed by law or 2) for per¬ 
missible grounds which are manifestly not 
supported by the evidence. Art. 524. 1931 
C.P.P . . 

Comment : Under the above-mentioned cir.cum- 

stances, the ricorso may be taken against 

the judgments of all ordinary courts, i.e. 

against the sentences of the (ordinary) 

Courts of Assizes, the Courts of Appeals, 

the Tribunals, and the Praetors. Cf. 

Art. 543 and 544. 1931 C.P.P. But cf. 

B, lc, ii, (2), (b), above, (p. 43). 

(ii) From .judgments of extraordinary criminal 

courts : Ricorso does not lie against judg- ( 

* / . 

ments of the Senate set up as High Court of ; 
Justice (cf. Ch. Ills F, 2, above, p. 20), 
but does lie against sentences of all other 
special courts for the grounds stated under 
(i), above, (p. 57), provided 1) that the 
sentences may not be reviewed in another 
manner and 2) that the law does not ex¬ 
pressly state that the sentences are not 
subject to any kind of review. Art. 528 . 
1931 C.P.P . 

Comments : l) Ricorso from .judgments of the 
High Court of Justice : It is 

questionable whether the High Court of 

' Justice established by D.L.L. 27.7.44. #159 

does, from a legal standpoint, take the 

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\ 


59 - 


RESTRICTED 


place of the Senate set up as a High Court of Jus¬ 
tice. In any event, judgments rendered by the High 
Court af Justice may not be reviewed by way of ri- 
corso except in cases of lack of jurisdiction (cf• 
Risorginento Liberale, 8 July 1945), because the 
la\v expressly states that they are final and not 
subject to review. Cf.A, 3b, above, (p. 54). 

2) Riporso from judgments of the 

Extraordinary Courts of Assizes: 

-_- 

Ricorso may.be taken against judgments oi the 
Extraordinary Courts of Assizes. Cf.C, 3b, above, 
(p. 56). 

3) Ricorso from judgments of the 
Hi1it ary Tribunals : 

Unless the la?: specifically states othei’wise, 
ricorso may be taken against the judgments of 
the Military Tribunals. Cf. B, 3, below, (p. 65). 
(b) Effect oi the ricorso: If the ricorso is allowed, 
the Supreme Courts of Cassation may either: 

. (i) Rectify the errors of the lower court with- 
out annulling the judgment: Art. 533. 1931 

C.P.P. This method of procedure will be 

adopted when the errors of the lower court 

did not'materially prejudice the rights of 

the accused. The rectification made by 

the Supreme Court of Cassation may impose 

a punishment more favorable to the accused 

than the one imposed by the sentence of the 

lower court. 

(ii) Annul the judgment wit hout remand ing it to 
the 1 ov;er court: Art. 539 and 540.1331 

C.P.P . -The most important instances in 

which this procedure is adopted are the 


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- 60 - 


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following: 

l) where the acts committed by the accused 
do not amount to a crime, 2) where the 
punishment for the crime does not fall 
Yd thin the jurisdiction of the ordinary 
or special courts which rendered the judg¬ 
ment, and 3) where the punishment imposed 
by the judgment is not allowed by law* 

(iii) Annul the judgment and remand it for a new 
trial: ArtT 5A3 and 5 LL. 1931 C.P.P. 

(iv) Partially annul the judgment of the lower 
court : Art. 545. 1931 C.P.P . 

(3) Revisione by the Supreme Court of Cassation * 

(a) Provisions establishing the grounds for review s 

The extraordinary remedy called revisione is 
granted by the Supreme Court of Cassation 
against final judgments rendered by the ordinary! 
criminal courts of original or appellate juris- ‘ 
diction in the following instances: 

(i) Mistake : when new evidence, discovered after 
the judgment has been rendered, clearly 
establishes that the crime was not committed ' 
or that the convict did not commit the crime, 
(ii) Fraud : when it is proved that the judgment 
of the lower court 'was obtained by fraud. 

\ 

Art. 553. and 561, 1931 C.P.P . 

Comment : According to the above-mentioned 
* articles, therefore, in cases of fraud or 

mistake the judgments of the ordinary 
Courts of Assizes, the Tribunals, and the 
Praetors may be reviewed by way of reyi- 
sione .lt seems clear, however, that neither 
the judgments of the High Court of Justice ; 


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- 61 


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nor those of the Military Tribunals may be 
attacked by way of revisione . It is be¬ 
lieved also that the judgment of the Extra¬ 
ordinary Courts of Assizes are not subject 
to review by way of revisione * 

(b) Effect of the revisione ; The Supreme Court 
of Cassation may either reject the petition 
for revisio ne or may'allow it and annul the 
judgment with or without remanding it to the 
lower court, Art. 558 and 561. 1931 C .P.P. 

Original jurisdiction and extraordinary appellate 

jurisdiction . 

(1) Original jurisdiction to vacate fraudulent jud g¬ 

ments mentioned in Ch* III: C, 1. above : One of 

the two regular penal sections of the Supreme Court 
of Cassation designated by the Minister Keeper of 
the Seals ( Ministro Guardasigilli ) is entrusted 
With the passage of "declaratory judgments" pro¬ 
nouncing the juridical inexistence of sentences 
mentioned under Ch. Ills C, 1, above (p. IS). 

Art. 6. D.L . L. 27.7.44. #159 . 

(2) Extraordinary appellate jurisdiction : After 

13 September 1944 one of the penal sections of the 
,Supreme Court of Cassation had appellate jurisdic¬ 
tion in cases involving quasi-offenses described 
in Ch. Is A, 5-6; C, 7, above (pp. 4-6 and 12), 
even on questions of fact, provided that the origi¬ 
nal judgment was passed either by l) a Praetor or 
2) one of the provincial commissions mentioned 
under F and II, below (pp. 65 and 70) . Art. 7 and 
13. D.L.L, 13.9.44. #198 . Subsequently, however, 
the provisions conferring this special appellate 
jurisdiction on the section of the Supreme Court 


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- 62 - 


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Cassation appear to have been repealed. Art. 2 and 
8. D.L.L. 26.4.45. #149 . 

b. Organization : The ordinary organization of the Supreme 
Court of Cassation is not modified for cases involving the 
punishment of Fascist criminals* 

c. Procedur e: There is no deviation from the ordinary rules 
for procedure in cases involving the punishment of Fascist 
criminals. 

Special provisional penal secti o ns of the Supreme C ourt of 

Cassation . 

a. Jurisdiction : This special section of the Supreme Court 
of-Cassation has been specifically established for the 
purpose of allowing ricorso from the decisions of the extra¬ 
ordinary Courts of Assizes. Cf. C, 3b, above, (p. 56). 

Art. 16. D.L . L. 22.4.45. //1 42. 

Comment : However, the jurisdiction of the above-mentioned 
special provisional Section of the Supreme Court of Cassa- 
tion ceases to exist simultaneously with the dissolution 
of the Extraordinary Courts of Assizes. Cf. C, la, ii, 
above, (p. 43).' 

b. Organization : The special provisional section of the Court 
of Cassation is established by decree of the Minister of 
Justice. This section is composed of five members. In 
connection with the sessions of this section the normal 
rules of venue are suspended. Art. 16. D.L.L. 22.4.45. #142 . 

c. Procedure . 

i. Provision s concerning the ricorso by the persons 

adjudged guilty : The grounds for the ricorso to the 

Court of Cassation must be filed, under penalty of 

inadmissibility, within three days after the sentence 

has been filed with the clerk of the Extraordinary 

Court of Assizes. Art* 17. D.L.L, 22.4.45. #142 * 

ii. Provisions affecting ricorso by the State : The time 

limit allowed for ricorso by the Attorney General is 

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reduced to five days. Art, 17. D.L.L, 22,4.45. 7^142 , 

iii. Provisions concerning review of sentences imposing the 

death penalty : When the Supreme Court of Cassation 

is asked to review sentences imposing the death 
penalty, it must render a decision within ten days 

1 - \ 

after receipt of the transcripts (atti). The trans¬ 
cripts should be forwarded immediately and under no 
circumstances late r than the day after the grounds 
f>or the ricorso have been filed. Art, 17. D.L.L . 
22.4.45. #142 . 

. Military Tribunals . 

•1. Jurisdiction : Military courts have (or had) jurisdiction to 
... • - try the.,following crimes: 

'• ' ar. Crimes described in Ch, I: B. above . 

i. Provisions of the lawi Members of the armed forces 

\* * 11 . . - 1 11 

who are guilty of the crimes mentioned in Ch, I: B, 
above, (p. 7) (collaboration with the Germans- after 
the armistice)-,-shall- be tried by Military Tribunals. 
Art. 5. D.L.L. 27.7,44, #159 . . - 

ii. Comments : l) It is not believed that the termination 
of the state of war in Europe will affect the juris¬ 
diction of the Military- Tribunals, 

2) Conf ~ let of jurisdiction between the 

Military Tribunals and the Extraordinary 
Courts of Assizes : '.There can be no 

question that, prior to the establishment of the 
Extraordinary- Courts of Assizes (on> 22 April 1945), 
the Military Tribunals had jurisdiction to try members 
of the armed forces who collaborated with the Germans 
after 8 September 1943# . It is not clear, however, if, 
after.the Extraordinary-Courts of. Assizes were estab¬ 
lished- and in the provinces in which the Extraordinary 
Courts of Assizes have jurisdiction, a) the Military 
Tribunals, b) the Extraordinary Courts of Assizes, or 


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3) both of these courts, hqve jurisdiction to try 

.y • 1 . 

members of the armed forces who collaborated with the 
Germans. Cf. C, lb, i, above, (p. 49). If a'dispute 
should arise between the two courts, the question of 
jurisdiction will be decided by the Supreme Court of 
Cassation by way of ricorso pursuant to the provisions 
of Art. 37 and 542. 1931 C.P.P . Cf. D, la, i, (2), 

(a)* (ii), above (p. 58). 

Furthermore, it is not clear what is meant by ’’members 
of the armed forces.’ 1 It is assumed, however, that the 
legislature intended that only persons who were on duty 
in the regular army, navy, Or air force were to^ be 
included as ’’members of the armed forces.” If this 
assumption is correct, members of the Fascist militia 
or the Fascist army will not be tried by the Military 
Tribunals but either 1) by the Extraordinary Courts 
of Assizes, or 2) by the ordinary penal courts, accord¬ 
ing to tljeir respective jurisdiction. Cf. 0, lb, i, 
above, (p. 49), and B, la, ii, (5), above, (p. 38). 

3) Conflict of jurisdiction between the 

Military Tribunals and the High Court 

of Justice : Clearly, the High Court of 

Justice and the Military Tribunals have concurrent 

jurisdiction to try members of the armed forces who 

collaborated with the Germans, However, a dispute may 

arise as to which court is to exercise jurisdiction. 

(This issue actually arose when the generals Pentimalli 

and Del Tetto requested that they be tried by the 

Military Tribunals rather than by the High Court of 

Justice;)cf. R & A Report No. 2688, pp. 26-28 and 

54-55). If the High Court of Justice is the first to 

believed to be 

assume jurisdiction its decision is/final because 
not subject to review. (Cf. A, 3b, above, p. 34). 


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If, on the other hand, the Military Tribunals are the 
first to assume jurisdiction and the accused or the 
• y .prosecutor demands that the trial be held by the High 
- ,-Gourt of Justice, the problem of conflict of jurisdic¬ 
tion will probably be decided by the Supreme Court of 
Cassation. Cf. D, la, i, (2), (a), (ii), above (p. 58). 

b. Crimes described in Ch. I: A. 4. above : Military Tribunals 
no longer have jurisdiction to try crimes described in 
Ch* I: A, 4> above (p. 3). Prior to the conclusion of the 
. statq : ,pf war in Europe, however, Military Tribunals had 

jurisdiction to try a! 1 persons guilty of crimes committed 
^against."the personality of the State” (cf.'1931 C.P.F. 

Book II., Title I, Articles 258, 262, and 284 to 286). 

. Art. 1. R.D.L. 20.1.44. #45 . 

2. Organization : Regular organization of the Military Tribunals. 

Cf. Ordinamento Giudiziario Militare , approved by R.D. 9.9.41# 

■ ; 

#1022 (supplement to G.U. 27.9.41 #229). 

3. Procedure : As regularly provided by the C.P.M.D.P. and 

C.P.M.D.G. 

Provinc i al Commissions (First Class ) • 

1. Jurisdiction : The Provincial Commissions mentioned under 2, 

, below, have jurisdiction to apply the sanctions provided for 

the quasi-offenses described in Ch. I: A, 5a, above (p. 4). 

Art. 8. D.L.L. 27.7.44. #159 as amended by Art. 2, D.L.L . 

26.4.45. #149 . 

' 

a. Comments : .1) There ar< some very complex questions of 
jurisdiction concerning the quasi-offenses. Although 
there is no question that the Provincial Commissions have 
jurisdiction to impose the proper sanctions provided by 
law,, it is not at all clear whether, with the possible 
exception of the High Court of Justice, other courts such 
as the Courts of Assizes, Extraordinary Courts of Assizes 


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Tribunals, or Praetors have concurrent jurisdiction to 
apply these sanctions. Article 7. D.L.L. 13•9*44* "198 
provides that the High Court of Justice, as well as ordi¬ 
nary and special tribunals, may apply the sanctions men¬ 
tioned in Ch. I; A, 5b and 6b; C, 7b, above, (pp. 4, 6, 
and 12), if during the trial it appears that the acts of 
the defendant, while not amounting to a real crime, con¬ 
stitutes one of the quasi-offenses described in Ch, I: 

t 

A, 5a and 6a; C, 7a, above (pp. 4, 6, and,12). According 
to the provisions of a subsequent decree, i.e. Articles 
2 and 8 of D.L.L. 26.4*45. #149, however, it is expressly 
stated that a) the provincial Commissions sha'll have juris¬ 
diction to apply the sanctions provided in Ch. I: A, 5b 

quasi- 

and 6b; 0, 7b, above (pp. 4, 6, and 12) for the/offenses 

(pp. 4,6,and 12) 

described in Ch. I: A, 5a and 6a; Cj 7a, above/and b) 
every provision contrary to or in any way inconsistent 
with the provisions of the second decree are repealed. 

The question is whether these provisions of D.L.L, 26,4.45. 
#149, taken as a whole, have the effect of repealing the 
concurrent jurisdiction conferred by D.L.L. 13.9*44. #198 
on ordinary and special tribunals. If a dispute .should 
arise between the ordinary penal courts or the Extraordinary 
Courts of Assizes and the Provincial Commissions, the 
competent tribunal to decide this question of law would 
be the Supreme Court of Cassation. Cf. B, la, ii, ( 4 ), 
above, (p. 37): C, lb, iii, above,- (p*. 53); and D, la, 
above, (p. 56). Art. 37 and 542. 1931 C.P.P . 

2) It would appear, however, that the High 
Court of Justice under the provisions mentioned under 
A, lc, and d, above (pp*.28-29), has concurrent (though 
qualified) jurisdiction with the Provincial Commissions to 
try persons accused of the above-mentioned quasi-offenses 


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- 67 - 


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• even if the provisions under A, le, above (p. 30) should 
be considered to have been repealed by the above-mentioned 
decree. If the High C^urt of Justice should assume juris¬ 
diction in these cases, which is very unlikely (cf. Comment 
2) under A, Id, ii, above p. 29), its decisions would be 
final. 

Organization . 

a. - Pom-position of the Provincial Commissions (First Class) : 

* The Provincial Commissions are composed of a presiding 
judge and two popular judges. Art. 8. D.L.L. 27.7,44 . 

#159 as amended by Art. 12. D.L.L, 13.9*44. #198 ; Art. 3 . 
D.L.L. 4.1.45. #2 ; Art. 2. D.L.L. 26*4.45. frlA9 * 

b. Appointment of the Presiding Judge : The presiding magis¬ 
trate of the Provincial Oommissions mentioned above is ap- 
appointed by the President of the Council of Ministers on 
the advice of the Minister of Justice and the High Com¬ 
missioner for Sanctions against Fascism* Art. 12. D.L.L, 
13.9.44. v'198 as amend'd by Art. 3. D.L.L. A. 1.45. 7 #2 . 

c. Appointment of popular .judges ; The two popular judges, 
mentioned above, are chosen by lot by the First President 
of the ’Court r of 'Appeal's from a-list of citizens whose 

.political and moral standing is irreproachable. The pro¬ 
visions mentioned under Bp lb, iii, above, (p* 40 ), are 
also applicable here, 1 Art. S, D.L.L. 27.7.44. #159 * as 
amended by Art. 12, D.L.L. 13.9*44. #198 and Art. 2. D.L.L* 
26DA.45. #149 . 

Pfrodedure i . *--- * * * 

a. Provisions affecting venue : The sanctions provided for by 
the lav; must be applied by the Commission of the province 
in the circumscription of which the accused resides or is 
domiciled, and in the event that the accused resides or is 
domiciled outside the Kingdom, the venue is determined by 


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- 68 - 


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the last known residence or domicile within the Kingdom. 
Art. 13. D.L.L. 13.9.44, #198 as amended by Art. 2. D.L.L . 
26.4.45. #149 '. 

b. Provisions affecting the initial stage of the proceedings : 

The Provincial Commissions may act on their own motion or 
pursuant to denouncements made by l) the High Commissioner 
for Sanctions against Fascism, or his delegates, or 2) the 
organs of public security (including also the 11 procuratore 
del Regno 'O , and also on information furnished by the 

.. Committees of National Liberation. Art. 13. D.L.L . 

13.9.44. #198 as amended by Art. 5. D.L.L. 26,4.45. #149 . 

.c. Provisions concerning arrest of accused and time limit 

within which Provincial Commissions must render their 

decisions : The immediate arrest of persons denounced to 

the Provincial Commissions for the imposition of sanctions 
described in Ch. Ij A, 5b, above (p, 4)> may be ordered by: 

1) the Provincial Commissions themselves; 

2) the High Commissioner for Sanctions against Fascism; 

3) the Procuratore del Regn o (attorney general attached 
to the Tribunal); or 

4) the questori (provincial police chiefs)• 

The notice of arrest shall be communicated within three 
days to the appropriate Provincial Commission, which 
must render a.decision within twenty days thereafter. 

• Art. 5. D.L.L, 26.4.45. #149 . 
d. Provisions «for the protectio n of the accused : Before the 
Commission may impose the sanctions provided in Ch. I; 

A, 5b, above (p. 4), it must grant a hearing to the ac- 

a, 

cused or give him notice to appear before it. The ac¬ 
cused may be assisted by counsel. Art. 13. D.L.L . 
13,9,44.. #198 and Art. 2. D.L.L. 26.4.45. #149 . 

e • Provisions for appeal from the decisions of the Provincial 
Commissions ; Appeals from the decisions of the above- 

mentioned Provincial Commissions may be taken t o the 

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- 69 - 


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Central Commission described under G, below, (p. 69) 

Art, 2. D.L.L. 26.4* *45. #149 . 

,j, 

f. Time limit Tor the enforcement of sanctions described in 

Ch, I: A, 5b, above : The sanctions provided for inCh. I* 

A, 5b,■ above (p. A) cannot be imposed later than one year 
after D.L.L. 26.4.45* #149 went into effect. (i.e,., not 
later than 29 April 1946). Art. 6. D.L.L. 26.4.45* #149 . 

g. Provisions concerning the clerk of the Provincial Commissions 

Secretarial duties are discharged -by functionaries of the 
Judicial Clerk's offices, appointed by the First President * 
of the Court of Appeals (or if no Court of Appeals is 
situated in the . commune, by the. president of the local 
•Tribunal) which is situated in the capital commune of 
the province in which the Provincial Commission is 
established. Art. 12. D.L.L. 13.9*44 #198 . - 

Central Commission * 

1. Jurisdiction : The Central Commission has jurisdiction to 

review decisions of the Provincial Commissions mentioned 

* 

under F, above, (p. 65). Art. 2. D.L.L. 26,4.45. #149 * 

2. Organization : The Central Commission is composed of a-presid¬ 
ing magistrate (with a rank apt lower than the fourth) and 
four additional members. The judge and the other members of 
the Central Commission are appointed by the President of the 
Council of Ministers on the advic'e of the Minister of Justice 
and the High Commissioner for Sanctions against Fascism. 

Art. 3. D.L.L. 4*1*45. #3 and Art. 2. D.L.L. 26,4.45. #149 * 

3. Procedure . 

a. Appeals to the Central Commission must be taken within 
5 days after notice of the decision of the provincial 
Commission has been communicated to the accused. 

Art. 3* D.L.L. 26.4.45. #149 . 

b. The appeal does not have the effect of staying the 
execution of the Provincial Commission's' decision. Art. 2 . 

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RES URIC HEP 




- 70 - 


D.L.L. 2 6./,. /5. #1/8 . 

c. T;_e rulings of the Central Co-mission are final and not 
subject to review. Art. 2. D.L.L. 26.A.45. #1/V . 

Co- •! ent : It is seriously questioned whether the decisions 
of the Central Conniesion nay be reviewed by the Supreme 
Court of Cassation. C'"*. D, 1, a, i, { 2 ) and (3), above 
(pp. % and 60 ). 



1. Jurisdiction ; The Provincial Commissions mentioned below 

have jurisdiction to apply the sanctions provided for the quasi¬ 
offenses described in Ch. I: A, 6; C, 7-8, above, (pp. 6, 12 
and 13). Art. 8. D.L.L. 27.7./A. #159 as amended by Art. 3 . 
and 8 . D.L.L. 26 . A. Z.5. #1/9 . 

Corvicnt : Insofar as the quasi-offenses mentioned in Ch. Is 


A, 6; and C, 7 (pp. 6 and 12) arc cc iccrncd, cf. discussion 
of conflict of jurisdiction under F, 1, a, above (p. 65 ). 

No such roblcn arises for the quasi-offenses described in 
Ch. Is C, 8, above, (p. 13). 

2. Orrmiaation : The Provincial Commissions which apply the 
sanctions described in Ch. Is A, 6 and C, 7-8, above (pp. 6, 

12 and 13) are composed of the following members: 

1) The prefect of the province; 

2) the p rocurators del Re (i.e. the attorney general of 
the Tribunal); 

3) a judge appointed by the president of the Tribunal; 

4 ) the gue store (i.e. the provincial police chief); 

5) the commanding officer of the carabinieri (state police) 
in the province; and 

6) a citizen of irreproachable integrity appointed by the 
mayor of the commune which is the capital of the 
province. 

The Commission is convoked and presided over by the prefect 


or by tlie vice prefect if the prefect is "for any reason unable 
to attend. 


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71 


RES mic TED 


A civil employee appointed by the prefect aotp as secretary, 
The decisions of the Commission are reaehed by majorfly vote. 
In case of a tie, the vote cast by the president is decisive, 

§1L% Art f 166 R.D. 18.6.31. #773 as 
amended by Art. 2. D.L.L. iQ f i9.// Mi.i Q 
3* Procedure . 



Tic Provincial Commissions may act on their own motion 
or pursuant to denouncements made by l) the Hi G h Com¬ 


missioner for Sanctions against Fascism or his delegates, 
or 2) the organs of "public security" (i.e. attorneys- 
general, police chiefs), and also on information fur¬ 
nished by the Committees of National Liberation. Art. 13 . 
D,L,L. 13.7.44. #108 as amended by Art. 5. D.L.L. 26 .4./.*> . 


b• Provisions for the immediate arrest of the accused without 

service of process . The immediate -arrest of persons 

denounced to the Provincial Commissions for the imposi¬ 
tion of sanctions mentioned in Ch. I: A, 6b and C, 7b, 

8b, above (pp. 6, 12 and 13), may only be ordered by: 

1) the Provincial Commissions .themselves; 

2) the High Commissioner for Sanctions against 
Fascism; 

3) the attorneys-general of' the Kingdom; or 

.... 4') the provincial'police chiefs • ( questori ) . 

-p le - notice - of arrest must'-be- communicated within 3 days 

to the appropriate provincial Commission, which must 

- r endorser '-decision • w£thdnr- : 20 days thereafter. Art. 5 . 

- D.L.L. ■ - ■ 

c. Se rvice of process oh the accused with order to annear 
before t he Commi ss ion : Within 5 days after having 

received notice of the denouncement the Provincial Com¬ 
mission must serve the accused with an order to appear 

















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before it and present his defense, 

The order to appear before the Provincial Commission shall 
contain a concise statement of the grounds on whi§& the 
denouncement is based. 

The time limit within which the accused must appear shall 
not be less than 3 or more than 10 days after the date the 
order was served# Art, 167 and 168, R.D. 18.6*3. #773 ; 

Art. 3. D.L.L. 26.4.45. #149 . 

d. Enforcement of the order to appear before the Provincial 
Commission: If the accused does not appear on the date and 

hour specified in the order and does not justify his failure 

to appear, the Provihcial Commission, after having ascertains 

that the accused was properly notified, shall order the 

sheriff to bring- the accused before it# Art. 168‘. R.D . 

18.6.51. #773 as amended by Art. 3. D.L.L. 10.12.44. fr419 ; 

Art. 3. D.L.L. 26.4.45. # 149. 

e. Judgment by, default : .If the sheriff is unable to carry out 
the above-mentioned order because he cannot find the ac¬ 
cused, the Provincial Commission may render a decision if 
it believes that there is sufficient evidence to justify 
it. Art. 168. R.D. 18.6.31. ^773 as amended by Art. 3. 

D.L.L. 'id'. 12.44. jfel9; Art. 3. D.L L. 26.4.45. #149 . 

f• Provisions for the protection of the accused: If the ac¬ 
cused has appeared before the Commission, he may be assisted 
by counsel. Art. 169. R.D. 18.6.31. if773 as amended by 
Art. 4. D.L.L. 10.12.4-1 ♦ #419 ; Art. 3, D . L L. 26.4,45 . #149 . 
g» Trial and judgment : If the accused denies the truth of the 
allegations in the denouncement, he may introduce evidence 
to prove his innocence. 

The Provincial Commission renders its decision after it has I 
examined the accused and considered the evidence and the 
conclusions of the defense. Art. 169. R.D. 18.6.31. #773 
as amended by Art. 4. D.L.L. 10.12.44. =f!19; Art. 5. D.L.L. J 


p-p.Q mPTomirn 




























- 73 


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26.4.45. #149 . 

h. - -Provisions for review : The rulings of the Provincial Com¬ 
mission may be reviewed by the Commission of Appeals men¬ 
tioned under I, below, (p. 73) * only if the Provincial 
Commission l) lacked jurisdiction or 2) failed to apply 
or erroneously applied the provisions of the law. Art. 169 

...... - R.D. 18.6.31- #773 as amended by Art. 4. D.L.L 10.12.44 . 

. • ' #419; Art. 3. D.L.L. 26.4.45. #149 . 

i. P rovisions gov e rning the establishment of concentration 
camps : The regulations governing the organization of the 

concentration camps mentioned in Ch. I: A, 6, b, 4) and 

C, 7. b. 4), above (pp. 6 and 12) will be issued by decree 

of the Minister .of the Interior in agreement with the 

Minister of the Treasury. Art. 7. D.L.L. 26.4.45. #149 . 

j. Time limit for enforcement of sanctions: The sanctions 

1 1 ’ 1 ‘ 1 ‘ 

provided for in Ch. I, A, 6, b and C, 7, b, above (pp.6 
and 12) cannot be imposed later than one year after D.L.L. 
26.4.45. #149 went into effect (i.e. not later than 26 April 
19 46). Ar»t. 6. D.L.L . 26.4.45. #149 . 

Commission of Appeals . 

1. Jurisdiction : The Commission of Appeals has jurisdiction to 
review the ordinances issued by the Provincial Commissions 
mentioned under E, above, (p. 70) . Art. 169 and 184. R.D . 
18.6.31. #773 as amended by Art. 2 an d 4. D.L.L. 10.12.44. #419 ; 
Art. 3. D.L.L. 26,4.45. #149 , 

2- Organization . 

a. Composition of the Commission of Appeals : The Commission 
of Appeals is composed of the following members: 

1) The Undersecretary of the Ministry of the Interior, 
who presides; 

2) The chief of police (not further identified); 

3) The attorney-general ( awocato generale ) assigned to 
a Court of Appeals; 


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74 - 


RES TRIC TED 


4) A president of the Court of Appeals or a councilor 
of the Supreme Court of Cassation, appointed by 
the Minister of Justice; 

5) An officer of the carabinieri with the rank of 

general, appointed by the chief of staff of the 
carabinieri ; and • 

6) A citizen of known integrity registered in the 

... lists of the popular judges and appointed by the 
Minister of Justice# 

An employee of the central office of public safety per¬ 
forms the secretarial duties. Art. 184. R.D. 18.6,31 . 
#773 as amended by Art, 2. D.L.L. 26.4.45. #149 # 
b. Location : The Commission of Appeals is established within 
the Ministry of the Interior. Art, 184. R.D. 18.6,31. #773 
'• -Mas-amended' by Art. 2. D.L.L. 10,12.44. #149 . 

Procedure . 

a. Meetings : The meetings of the Commission are convoked by 
the president, 

b* Legal assistance : The appellant may be represented by 
'counsel#* 

c * Decisions : Decisions of the Commission of Appeals are 

reached by majority vote. In case of a tie, the vote cast 
by the president is decisive# 

d. Effect : The ricorso does not stay the execution of the 
ordinance# 

e. Execution: The decisions of the' Commission of Appeals are 
communicated to the Ministry of the Interior for execution# 

Art. 184. R.D. 18.6,31. #773 as amended by Art. 2. D.L.L . 

26,4.45. #149. 


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- 75 - 

office; of the high commissioner for sanctions against fascism 

A, In General , 

1. Functions of the Office of the High Commissioner: The 

——■ 1 - ” """" p 1 1 1 » - • ' —« ' j ■ . . 

functions of the Office of the High Commissioner are two¬ 
fold: a) supervision of all organs entrusted with the en¬ 
forcement of sanctions against Fascism (i.e., punishment 
of crimes or quasi-offenses described in Ch. Is A, B, and 

C, 7, above,pp.1,7>12), and b) exercise of the duties of 
attorney general in certain specified instances. Art. 41. 

D. L.L. 27.7.44. #159 . 

2. Composition of the Office of the High Commissioner : The 
Office of the High Commissioner for Sanctions against 
Fascism is composed of a High Commissioner, four Assistant 
High Commissioners, and four Assistant vice High Com¬ 
missioners (for each of. the four branches -of .defascisti- 
zation, only one of which deals with the punishment of 
Fascist criminals), and various other functionaries. 

Art. 40. D.L.L. 27.7.44. #159 as amended by Art. 1, 2 , 

5, and 5. D.L.L. 5.10.44. #238 and by Art. 1. D.L.L . 

4.1.45. #2 . 

B. The High Commissioner for Sanctions against Fascism . 

1. Appointment: The High Commissioner for Sanctions against 
Fascism is appointed ’’after deliberation” of the Council of 
Ministers. Art.;40. D.L.L. 27.7.44. #159 as amended by 
Art. 1. D.L.L. 4.1.45, #2 . 

Comment: It is not clear who actually appoints the High 

Commissioner. According to article 11 of R.D.L. 26.5.44. 
#134, which was subsequently repealed (by article 46. D.L.L. 
27.7.44. #159),,the High Commissioner for the punishment 
of Fascist crimes was appointed by royal decree on the 
t advice•of the President of the Council of Ministers. The 

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- 76 - 


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present law does not state, however, whether or not the 
High Commissioner is to he appointed by decree of the 
Lieutenant General. 

Functions: . As has been pointed out above, the High Com¬ 
missioner has a dual capacity, that of supervising the en¬ 
forcement of sanctions against Fascism, and, in certain 
instances, that of attorney general. 

a. Supervision of sanctions against Fascism : The High 
Commissioner directs and supervises the work of all 
organs which impose sanctions against Fascism. Arlp. 41 . 
D.L.L. 27.7.44. #159. Consequently, the High Com¬ 
missioner may promote the action for the punishment 

of all crimes or quasi-offenses described in Ch. I: 

A, B, and C, 7-8, above, (pp.1,7^12). Art. 41. D.L.L . 
27.7.44. #159 as amended by Art. 3. D.L.L. 3.5.45 . 

#196 . 

b. The High Commissioner, the.sole attorney general in 

proceedings before the High Court of ‘Justice: 
i. General rule : The High Commissioner alone exercises 
the functions of attorney general for the crimes 
mentioned in Ch. I: A, 1, above (p. 1), which come 
under the jurisdiction of the High Court of Justice. 
Cf. Ch. V: A, 1, a, above (p. 27). Art. 41. D.L.L. 

. 27.7.44. #159 . 

ii. Exceptional circumstances : The High Commissioner 
may, under exceptional circumstances, confer juris¬ 
diction on the High Court of Justice to try persons 
guilty of the crimes or quasi-offenses described 
in Ch. I; A, B, and C,. 7, above (pp.1,7,12),which 
normally do not come under its jurisdiction. Cf. 

Ch. V: A, 1, a, above (p. 27). Art. 41. D.L.L . 
27.7.44. #159. 


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- ?.jhr 

■ Comment: _ 

1) In proceedings before the High Court of Justice 
against persons guilty of the above-mentioned 
crimes, the High Commissioner is empowered to 
act as attorney general in spite of the fact 
that these crimes do not usually fall within 
the jurisdiction of the High Court of Justice. 

2) For specific functions of the High Commissioner 
before the High Court of Justice, cf. Ch. V: 

A, 3, above (p. 32), 

. Instances in which the High Commissioner may exer¬ 
cise functions of attorney general concurrently 

* 

with or to the exclusion of regular attorneys 

general before courts other than the High Court of 

Justice. 

i. Initiation of istruzione : The High Commissioner 
may also, with the magistrates or expert law¬ 
yers in his office, proceed with the istruzione 
for persons accused of crimes described in Ch. I: 

A, 2-4, above (pp, 2-3 )> which do not fall with¬ 
in the jurisdiction of the High Court of Justice. 

I.-/•' He may then ask the court having jurisdiction 

to try the accused, or he may request the court 
', • ,to cancel the proceedings. Art. 41. D.L.L. 

27.7.44. as amended by Art. 3. D.L.L. 3.5.45. 

#196 . 

Comment ; In this connection, it is signifi¬ 
cant that although the High Commissioner is em¬ 
powered to exercise some of the functions of 
attorney general, he does so concurrently with 
the attorneys general who are regularly entrusted 
with the prosecutions in the above-mentioned courts 

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- 78 - 


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ii f High Commissioner's authority to institute pro ¬ 
c eedings to review judgments : The High Com¬ 
missioner has authority to institute proceedings 
to review interlocutory judgments, quashing pro¬ 
ceedings against the accused at the termination 
of the istruzicne or judgments rendered at the 
close of the trial for crimes mentioned in Ch. Is 
A, 2-4 and B, above (pp.2,3,7). The High Com¬ 
missioner may exercise this function 1) regard¬ 
less of the conclusions reached by the regular 
attorney general and 2) in addition to pro¬ 
ceedings for review instituted by the latter. 

• The ..High Commissioner, however, must institute 
proceedings for review within thirty days after 
receiving notice of the judgment from.the clerk's 
office of the court. Art. 1. D.L.L. 5.5.45. #196 . 
Comment: The High Commissioner, however, has 
no authority to institute proceedings to review- 
judgments passed by the Extraordinary Courts of 
Assizes. Art. 1. D. L.L. 3.5.45. #196 . 
iii. High Commissioner's authority to reopen the 
istruzione when proceedings were quashed for 
lack of sufficient evidence : In prosecutions 
for crimes mentioned in Ch. I: A, 2-4 and B, 
above (pp.2,3,7), if new evidence is discovered 
following the quashing of proceedings against 
the accused at the close of the istruzione, the 
High Commissioner may have the istruzione re¬ 
opened in accordance with the provisions of 
Articles 402 and 404 of the 1931 C.P.P. Art. 2 . 
D.L.L. 3.5.45. #196. 


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- 79 - 


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Comment : It is doubtful, however,‘whether the 

High Commissioner has such author Tty in pro¬ 
ceedings before the Extraordinary Courts of 
Assizes. 

d. Authority to propose revocation of pardons : The 
High Commissioner may propose the revocation of 
pardons granted to Fascist criminals. Cf. Ch. Ill: 
A, above (p. 79). Art. 6. D.L.L. 27.7.44. #159 . 

C. Assistant High Commissioners . 

1. Appointment : The four Assistant High Commissioners, one 
for each branch of defascistization (punishment of Fascist 
crimes, epuration of the administration, forfeiture to 
the State of individual ’’profits of the regime,” and the 
liquidation of Fascist property) are appointed by the 
President of the Council of Ministers. Art. 40. D.L.L. 

27,7.44. vfl59 as amended by Art. 1. D.L.L. 4.1.45. #2; 

Art. 1. D.L.L. 5.10.44. #258. 

2. Functions of the Assistant High Commissioners . 

a. In general: The Assistant High Commissioners, in their 
respective fields, assist the High Commissioner in 
applying the sanctions against Fascism. Art. 40. D.L.L . 
4.1.45. #2 . 

b. As substitutes for the High Commissioner : If the Hi 6 h 
Commissioner's post is vacant or the High Commissioner 
is absent, the four Assistant High Commissioners, under 
the chairmanship of the President of the Council of 
Ministers, exercise jointly the functions of the High 

Commissioner. Art. 1. D.L f L. 4.1.45. #2. 

. . - ■ ■ ■ ■ 

D. Vice Assistant High Commissio ners. 

Appointment . Four vice Assistant High Commissioners, one 
for each branch of defascistization, are appointed by the 
President of the Council of Ministers. Art. 40. D.L.L. 


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- GO - 


RESTRICTED 


27.7.44 , as amended by Art, 2. D.L.L. 3.10,44, #238 and 
Art. 1. D.L.L. 4.1.45. #2 . 

2. Functions . The vice Assistant Commissioners, like the 
Assistant High Commissioner, assist the High Commissioner 
for Sanctions against Fascism in applying the sanctions 
against Fascism in their respective branches. Art. 40. D.L.L 
. 27.7.44. #159 as amended by Art. 1. D.L.L. 4.1.45. #2. 

Office of the Secretary. 

The. Office of the Secretary is administered by a Secretary 
General and may include personnel not regularly employed by 
the Government. Art. 40. D.L.L. 27.7.44. #159 as amended by 
Art. 5. D.L.L. 3,10.44 and Art. 1. D.L.L. 4.1.45. #2 . 

Magistrates and other functionaries of the Office of the High 
Commissioner . 

Magistrates and other functionaries may, at the request of the 

High Commissioner, be assigned to his office in adequate numbers 

\ - 

• to ensure its regular functioning. Art. 40. D.L.L. 27.7.44. 

#159 as amended by Art,, 5. D.L.L. 5.10.44. #258 and Art. 1 . 
D.L.L. 4.1.45. #2 . 

The lawyers who act as the High Commissioner’s delegates in 
instituting proceedings for the.punishment of crimes falling 
within the jurisdiction of Courts other than the High Court 
of Justice are appointed by the local Bar Commissions from 
lists drawn up by the said commissions. Each list will include 
the names of not more than ten lawyers. Art. 3. D.L.L. 3.5.45.' 
#196. 

Police Force at the disposal of the High Commissioner’s Office . 

A number of judiciary police, composed of members of the 
carabinieri (State police), police agents ("pubblica sicurezza"), 
and treasury guards, are placed a.t the disposal of the office 
of the High. Commissioner. The High Commissioner, or his 
delegates, may request the assistance of the judiciary police 


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- 81 - 


RESTRICTED 


officers who are required to carry out their orders. Art. 40. 
' D.L.L. 27,7.44 as amended by Art. 3, D.L.L. 3.10.44. #238; 

Art. 1. D.L.L. 4.1.45. #2 . 

Other Bmployees of the High Commissioners Office. 

The High Commissioner has authority to hire other personnel 
(in numbers not exceeding one hundred and twenty) according 
to the needs of his office pursuant to the provisions of 
R.D.L. 4.2.37. #100. Art. 6. D.L.L. 3.10.44. #238. 





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VII. 




. . _ - 82 - •. - 

GENERAL MD TRANSITORY PROVISIONS ■ "~i ' 


RESTRICTED 


A. . Applicable to: Crimes or^uas^effen-S'eTTle scribed in Ch. I; A , 

1-6, ■ 3, and C, 7-8', above . 

1. -. ,Provisioti5 concerning proceedings initiated prior to 27 July 

1944 for th^'punishment of Fascist crimes ^ Proceedings 
instituted pursuant to the provisions of laws subsequently- 
repealed are continued in accordance with the provisions of 
the new laws. Sentences passed pursuant to the former laws 
will not be vacated unless inconsistent with the current 
laws. Art. 44. D.L.L. 27.7.44. #159 . 

2. Provisions concerning the punishment of defascistization 

officials guilty of certain crimes. Government officials 
entrusted with the application of sanctions against Fascism 
who commit any of the crimes specified in Arts. 314, 316- . 
320, 323, 324, 326, and 328 of the 1931 Penal Code, shall 
incur the punishments provided therein augmented by one- 
third to one-half. Art. 45. D.L.L. 27.7.44. #159 . 

B. Applicable to Crimes Described in Ch. I: C, 1-6, above . 

1. Provisions for the punishment of persons who aid and abet 
those guilty of the crimes mentioned in Ch. I; C, 1-6, above . 
Whoever assists persons guilty of any of the crimes de¬ 
scribed in Ch. I: C, 1-6, above (pp,10-12)> by giving them 
asylum, helping them to evade investigations or avoid 
arrest, or by helping them to prevent execution of the 
sentence, and whoever destroys or conceals the evidence 

of the crime, shall be punished with one to five years 
imprisonment. Art. 6. D.L.L. 26.4.45. #195 . 

2. Provisions concerning relatives of persons guilty of the 

crimes described in Ch. I; C, 1-6, above . The punishments 
prescribed under 1, above, do not apply to persons who give 
assistance to save one of the following relatives: 


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- 33 - 


RESTRICTED 


1) ascendant; 2) descendant; 3) spouse; 4) brother or 
sister; 5) uncle (or aunt); 6) nephew (or niece); 7) a 
relation by marriage in the second degree (provided the 
spouse is deceased and there is no issue). Art. 6 . 

26.4.45. #195 . 

Applicable to all 'Crimes•or Quasi-Offenses . 

The provisions of the 1931 C.P.P. are applicable to the crimes 
described in Ch. I: A, B, and C, 7-8, if pertinent and not 
inconsistent with procedural rules as set forth in this report. 
Art. 10. D.L.L. 27.7.44. $159. It is implied that the above 
provisions are also applicable, if pertinent, to the other 
crimes mentioned in this report (cf. Ch. I: C, 1-6). 




\ 


■ i J.CJ;.' 


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RESTRICTED 


. -~1 . -. 84 -. 

BIBLIOGRAPHY AND SOURCE MATERIAL 

Battaglini, Giulio: Diritto Penale (1937). 

Battista, Michele: Codice Penale . Codice di Procedura Penale (1931). 
Bruno, A: Codice di Procedura Penale (1915). 

Carletti, Tito and Cogliolo, Pietro: Codice Penale (1902). 

Cassiano, Alberto: Element! di diritto processuale penale (1933). 
Castellano, Giorgio: Codice di Procedura penale (1933). 

Codice Penale Militare di Guerra , published in the Gazzett a Ufficiale 
(ordinary supplement) #107, 6 May 1941 - XIX. 

Codice Penale Militare di Pace , published in the Gazzetta Ufficiale . 
(ordinary supplement) #107, 6 May 1941 - XIX. 

I 

d'Amelio, Mariano: Nuovo Digesto Italiano (1939), Vols. Ill, IX, XV 4 
Di Martino, Umberto: Commento al Nuovo Codice di Procedura Penale 
(1932). 

Enciclopedia Italiana . Vols. XI, XVII. 

Franchi, L: Legg i Usuali d*Italia (8th edition), (1939). 

"Treatment of Former Fascists by the Italian Government," R&A Report 
No. 2688, 17 March 1945. 


R.D.L. 

27.10.27 #1983 

published 

in 

the 

Gazzetta 

Ufficiale 

#253 

2.11.27. 

R.D. 

18.6.31 

#773 

published 

in 

Leggi Usuali 

(1939). 



R.D.L. 

6.12.43 #22/B 

published 

in 

the 

Gazzetta 

Ufficiale #4/B 

8.12.43. 

R.D.L. 

20.1.44 

#45 

published 

in 

the 

Gazzetta 

Ufficiale 

#8 

19.2.44. 

R.D.L. 

26.5.44 

#134 

published 

in 

the 

Gazzetta 

Ufficiale 

#32 

31.5.44. 

D.L.L. 

27.7.44 

#159 

published 

in 

the' Gazzetta 

Ufficiale 

#41 

29.7.44. 

D.L.L. 

6.8.44 

#170 

published 

in 

the 

Gazzetta 

Ufficiale 

#47 

18.8.44. 

D.L.L. 

10.8.44 

#224 

published 

in 

the 

Gazzetta 

Ufficiale 

#64 

5.10.44. 

D.L.L. 

13.9.44 

#198 

published 

in 

the 

Gazzetta 

Ufficiale 

#55 

14.9.44. 

D.L.L. 

14.9.44 

#283 

published 

in 

the 

Gazzetta 

Ufficiale 

#79 

9.11.44. 

D.L.L. 

3.10.44 

#238 

published 

in 

the 

Gazzetta 

Ufficiale 

#67 

12.10.44. 

D.L.L. 

5.10.44 

#229 

published 

in 

the 

Gazzetta 

Ufficiale 

#65 

7.10.44. 

D.L.L. 

5.10.44 

#249 

published 

in 

the 

Gazzetta 

Ufficiale 

#70 18.10.44 

D.L.L. 

5.10.44 

#290 

published 

in 

the 

Gazzetta 

Ufficiale 

#79 

9.11.44. 


RESTRICTED 











































































- 85 

- 

- 

RESTRICTED 

D.L.L. 

8.12.44 

#406 published in the 

Gazzetta 

Ufficiale 

#4 

9.1.45. 

D.L.L. 

10.12.44 

#419 published in the 

Gazzetta 

Ufficiale 

#7 

16.1.45. 

D.L.L. 

28.12.44 

#429 published in the 

Gazzetta 

Ufficiale 

#11 

25.1.45. 

D.L.L. 

4.1.45 

#2 published in the 

Gazzetta 

Ufficiale 

#4 

9.1.45. 

D.P.C.N 

1. 2.2.45 

published in the 

Gazzetta 

Ufficiale 

#20 

15.2.45. 

D.L.L, 

22.4.45 

#142 published in the Gazzetta 

Ufficiale 

#49 

24*4.45. 

D.L.L. 

26.4.45 

#149 published in the 

Gazzetta 

Ufficiale 

#51 

28.4.45. 

D.L.L. 

26.4.45 

#195 published in the 

Gazzetta 

Ufficiale 

#58 

15.5.45. 

D.L.L. 

26.4.45 

#197 published in the 

Gazzetta 

Ufficiale 

#58 

15.5.45. 

D.L.L. 

3.5.45 

#196 published in the 

Gazzetta 

Ufficiale 

#58 

15.5.45. 

D.L.L. 

10.5.45 

#234 published in the 

Gazzetta 

Ufficiale 

#62 

24.5.45. 

D.L. 

11.5.45 

#186 published in the 

Gazzetta Ufficiale 

#57 

12.5.45. 


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